Raggianti Foundations III, LLC v. Peter R. Brown Construction, I, et al

Filing

Opinion issued by court as to Appellant Raggianti Foundations III, LLC. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15336
________________________
D.C. Docket No. 8:12-cv-00942-VMC-MAP

UNITED STATES OF AMERICA, for the Use & Benefit of RAGGHIANTI
FOUNDATIONS III, LLC,
Plaintiff-Appellant,
versus
PETER R. BROWN CONSTRUCTION, INC.,
LIBERTY MUTUAL INSURANCE COMPANY,
SAFECO INSURANCE COMPANY OF AMERICA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 4, 2017)
Before TJOFLAT, ROSENBAUM, and ANDERSON, Circuit Judges.

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PER CURIAM:
Defendant-Appellee Peter R. Brown Construction, Inc. (“PRBC”), hired
Plaintiff-Appellant Ragghianti Foundations III, LLC (“Ragghianti”), as a
subcontractor to pour concrete for the construction of a military training facility in
San Angelo, Texas. Concluding that Ragghianti did a poor job, PRBC terminated
its contract with Ragghianti for default.

Ragghianti, however, blamed any

deficiencies in the construction project on PRBC’s own shortcomings in
orchestrating the project.

Through this lawsuit, Ragghianti sought to recover

damages in the form of costs it incurred as a result of PRBC’s alleged
mismanagement and negligence.
Following a bench trial, the district court denied Ragghianti’s claims, except
that it awarded the money Ragghianti was still owed for work performed. Because
Ragghianti cannot show that its subcontract entitled it to the damages it sought, we
affirm the district court’s judgment.
I. Background
Detailed findings of fact are set forth in the district court’s order. We
include a summary of facts relevant to this appeal.
On August 16, 2010, the United States Army Corps of Engineers (“Corps”)
contracted with PBS&J Constructors, Inc., to build a military training facility in

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San Angelo, Texas. In compliance with the Miller Act, 40 U.S.C. § 3131,1 PBS&J
obtained payment and performance bonds from sureties Liberty Mutual Insurance
Company and Safeco Insurance Company of America, naming PBS&J as
principal, and PBS&J furnished them to the government.
PBS&J’s subsidiary, PRBC, entered into a subcontract with Ragghianti on
January 24, 2011. The subcontract required Ragghianti to install the concrete for
the training facility, including its slab on grade foundation. By the subcontract’s
terms, the law of the state in which the project was located—Texas—governed the
relationship, except where otherwise provided.
From its start, the construction project was beset by obstacles causing delay
and deviation from its ever-amended schedule. First, Ragghianti was not prepared
to mobilize its labor until almost three weeks after the scheduled time due to its
delay in procuring a bond, as required by the subcontract. Then PRBC was not
ready for Ragghianti’s work until over two months after that. Next, unforeseen
soil conditions delayed drilling. When drilling resumed, Ragghianti’s failure to
provide sufficient labor further delayed the project. In late 2011, the Corps issued
PRBC a draft “interim unsatisfactory” review.

1

Subsection 3131(b) of Title 40 provides that “[b]efore any contract of more than
$100,000 is awarded for the construction, alteration, or repair of any public building or public
work of the Federal Government, a person must furnish to the Government [a performance bond
and a payment bond], which become binding when the contract is awarded.”
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Most significantly for purposes of this appeal, the initial concrete pour for
the slab on grade went terribly. Only six of the expected thirteen workers from
Ragghianti’s sub-subcontractor showed up on February 14, 2012, the day of the
pour. Then eight of the fourteen pump trucks transporting concrete turned the
concrete for longer than the 90-minute time limit before use. As a result, much of
the concrete became too dry to finish properly. While Ragghianti blames PRBC in
part for the quality of the concrete it provided and for delaying the pump trucks,
neither party currently disputes that the finish on the slab was of “unacceptable
quality.”
On February 16, 2012, PRBC issued a failure-to-perform letter related to the
February 14 concrete pour. The failure-to-perform letter provided Ragghianti 48
hours to remove the unsatisfactory concrete, and it requested an action plan for
future slab pours. Ragghianti submitted an action plan the next day, which stated
that “demolition of the existing [slab on grade]” would commence no later than
February 20 and could “arguably” be completed within a week’s time.
By the morning of February 22, however, Ragghianti’s workers still had not
begun removing the slab, despite having been on premises for most of the
intervening days. So on February 22, 2012, PRBC issued a notice-of-termination
letter, citing Ragghianti’s failure to cure the defective slab on grade, among other
faults. Although Ragghianti employed one worker and one piece of borrowed
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equipment to begin breaking up the concrete slab on February 22 and 23, PRBC
did not consider this a sufficient attempt to complete the necessary remedial work
in a timely manner. PRBC therefore hired other subcontractors to break up the
slab and complete the concrete work for the training facility.
In April 2012, Ragghianti filed suit. The amended complaint set forth a
breach-of-contract claim against PRBC and an alternative claim for damages in
quantum meruit.

Ragghianti also sought recovery from PRBC’s co-sureties,

Safeco Insurance and Liberty Mutual, under the Miller Act. PRBC counterclaimed
for contractual indemnification and breach of contract.
Following a five-and-a-half-day bench trial, the district court awarded
Ragghianti damages under the subcontract for its unpaid furnished labor and
materials but denied its other claims. The court entered judgment in favor of
PRBC on both of its claims, an award totaling $435,457 after Ragghianti’s
damages were subtracted from PRBC’s. In addition, the court awarded PRBC
attorneys’ fees, which have yet to be determined.
II. Analysis
Following a bench trial, we review a district court’s factual findings for clear
error and its legal conclusions de novo. Renteria-Marin v. Ag-Mart Produce, Inc.,
537 F.3d 1321, 1324 (11th Cir. 2008).

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Ragghianti raises four main issues on appeal. First, Ragghianti argues that
the district court erred in holding that fair-notice requirements under Texas law
were not applicable to the indemnity provisions at issue in the subcontract.
Second, Ragghianti disputes the district court’s determination that Ragghianti was
properly terminated for default rather than at PRBC’s convenience.

Third,

Ragghianti takes issue with the scope of damages that the district court awarded it.
And fourth, Ragghianti challenges the decisions of the district court denying
Ragghianti’s attorneys’ fees and granting PRBC’s attorneys’ fees. We address
each argument in turn.
A.
We begin with the district court’s determination that Texas’s fair-notice
requirements were not applicable to the indemnity provisions under review. In
Texas, “extra-ordinary risk shifting clauses” that indemnify a party from the
consequences of its own negligence or release a party in advance for liability for its
own negligence must meet two so-called fair-notice requirements. Green Int’l,
Inc. v. Solis, 951 S.W.2d 384, 386 (Tex. 1997). First, the express-negligence
doctrine requires “a party seeking indemnity from the consequences of that party’s
own negligence [to] express that intent in specific terms within the four corners of
the contract.” Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508
(Tex. 1993) (citation omitted). Second, the terms must appear conspicuously “on
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the face of the contract to attract the attention of a reasonable person when [s]he
looks at it.” Id. (alteration and internal quotation marks omitted).
The fair-notice requirements are intended to protect an indemnitor from
accidentally agreeing, as a result of deliberately ambiguous and unfortunately
construed contract language, to indemnify the indemnitee for the consequences of
the indemnitee’s own negligence. Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d
705, 707-08 (Tex. 1987). They therefore come into play when an indemnitor seeks
indemnity for the results of its own negligence—and only then. See id. at 708
(“Indemnitees seeking indemnity for the consequences of their own negligence
which proximately causes injury jointly and concurrently with the indemnitor’s
negligence must also meet the express negligence test.”) (emphasis added).
Notably, even if a contractual provision shifts liability for a prosecuting party’s
own negligence, the express-negligence doctrine does not apply when the party
does not seek to recover for its own negligence. See MAN GHH Logistics GMBH
v. Emscor, Inc., 858 S.W.2d 41, 43 (Tex. Ct. App. 1993).
Ragghianti argues that the damages PRBC obtained as a result of
Ragghianti’s breach should be considered attributable to PRBC’s own negligence
because PRBC was, in Ragghianti’s view, at least partly to blame for the deficient
slab on grade. As a result, Ragghianti reasons, the subcontract between PRBC and
Ragghianti was required to comply with the fair-notice requirements in order for
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the district court to have been able to order Ragghianti to indemnify PRBC for the
consequences of PRBC’s alleged own negligence.
But significantly, neither Ragghianti nor PRBC brought any claim or
counterclaim sounding in negligence. So under the circumstances of this case, the
fair-notice requirements simply do not apply. See Quorum Health Res., L.L.C. v.
Maverick Cty. Hosp. Dist., 308 F.3d 451, 459 (5th Cir. 2002) (noting, under Texas
law, that “[t]he express negligence rule applies if [indemnitee] seeks
indemnification for its own acts of negligence or for the joint or concurrent
negligence of [indemnitee] and [indemnitor]”); MAN GHH Logistics GMBH, 858
S.W.2d at 43 (“[T]he express negligence rule does not apply in this case because
appellants are not seeking to recover for their own negligence.”).
Ragghianti may not recast its breach-of-contract claim on appeal as one of
negligence. Nor may we accept Ragghianti’s invitation to infer that PRBC must
have been negligent to the extent that Ragghianti was entitled to any damages
under the subcontract.
Ragghianti nonetheless argues that PRBC’s counterclaims are akin to
negligence claims, citing Ewing Construction Co. v. Amerisure Insurance Co. for
the proposition that in Texas, claims of failure to properly perform under a
construction contract are considered “substantively the same” as claims of

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negligence. 420 S.W.3d 30, 37 (Tex. 2014). Ewing, however, does not help
Ragghianti.
That case involved a dispute over insurance coverage in which Ewing
Construction Company was sued for breach of contract and negligence, based on
work it had done building tennis courts. Ewing tendered defense of that lawsuit to
its insurance company, and the insurance company denied coverage. As a result,
Ewing filed suit seeking a declaration that its insurance company had breached
duties to defend Ewing and indemnify it for any damages awarded against it in the
underlying lawsuit.
The policy at issue in Ewing contained a contractual liability exclusion,
which, as relevant in Ewing, excluded coverage for claims for damages based on
an insured’s contractual assumption of liability, except where the insured’s liability
for damages would exist even in the absence of the contract. Id. at 36. The terms
of the contract at issue in Ewing required Ewing to construct the courts “in a good
and workmanlike manner.” Id. Discussing the meaning of this specific contractual
provision, the Texas Supreme Court explained that it imposed no greater obligation
on Ewing than Texas law, through the tort of negligence, otherwise did. Id. at 37.
As a result, the Texas Supreme Court noted, under the contract at issue in Ewing,
the claims for breach of contract and for negligence were necessarily based on the
“same factual allegations and alleged misconduct.” Id. Thus, the Texas Supreme
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Court described the two specific claims at issue in Ewing as “substantively the
same,” for purposes of determining whether the contractual liability exclusion
excluded coverage for each of them. Id. Ewing did not consider and does not
stand for the proposition that a breach-of-contract claim alleging specific
contractual breaches is to be treated as substantively identical to a negligence
claim.
Because PRBC does not in this action attempt to recover under the
subcontract costs attributable to its own negligence, we need not determine
whether the subcontract explicitly and conspicuously would allow PRBC to do so.2
Ragghianti attempts to subject the subcontract to the fair-notice requirements
because PRBC sought to recover its defense costs. Ragghianti contends that, under
Texas law, “any indemnity clause that allows assessment of an indemnitee’s
attorneys’ fees against an indemnitor must meet the Express Negligence Doctrine.”
Ragghianti bases this incorrect proposition on a misreading of Fisk Electric
Co. v. Constructors & Associates, Inc. 888 S.W.2d 813 (Tex. 1994). In Fisk, the
Texas Supreme Court held that an indemnitee could not recover the costs of
defending against a negligence action where the contractual provisions at issue did
2

Nevertheless, we note that the district court correctly concluded that the contract
provisions with which Ragghianti takes issue do not purport to shift the risk of PRBC’s
negligence to Ragghianti. Of note, the subcontract provides that “nothing contained herein shall
be . . . construed as an agreement to indemnify anyone for their own negligence once such
negligence has been finally adjudicated by a court of law . . . .” It would therefore be impossible
for PRBC to recover costs attributable to its own negligence under the terms of the subcontract.
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not comply with the express-negligence doctrine. Id. at 815-16. The Fisk holding
is inapposite here, where no negligence claim was brought and defended against.
The district court correctly held, under Texas law, that the subcontract was
not required to conform to the fair-notice requirements.
B.
Ragghianti next contests the district court’s determination that Ragghianti
was properly terminated for default rather than at PRBC’s convenience. In support
of its position, Ragghianti makes two essential arguments: first, that the Federal
Acquisition Regulations (“FAR”) entitled it to ten days’ default notice rather than
the two days afforded by the subcontract; and second, that PRBC in any case failed
to comply with the subcontract’s requirement that PRBC give Ragghianti two
days’ notice before terminating the subcontract for Ragghianti’s default.
Ragghianti contends that the subcontract incorporated 48 C.F.R. § 49.402-3,
a subsection of the FAR that affords a subcontractor notice prior to termination for
default, along with at least ten days in which to cure its failure to perform under the
contract.

In support of this position, Ragghianti points to Exhibit K of the

subcontract, which expressly incorporates specified subsections of the FAR.
Significantly, however, § 49.402-3 is not among those listed.
Ragghianti maintains that the subcontract nevertheless incorporates
§ 49.402-3, based on the following language: “The following FAR provisions are
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hereby incorporated by reference into this Subcontract, with the same force and
effect as if set forth in full text herein.

The full text can also be accessed

electronically at http://farsite.hill.af.mil and http://www.acqnet.gov/far.” Because
the full text of § 49.402-3 may be accessed on those websites, Ragghianti insists,
the subcontract incorporates its text as well.
Ragghianti’s suggested reading would require us to ignore the fact that the
subcontract expressly incorporates only selected portions of the FAR, as opposed
to incorporating the FAR as a whole.

It would also render meaningless the

subcontract’s own two-day notice and opportunity-to-cure provisions. See J.M.
Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003) (“In construing a
written contract . . . we must examine and consider the entire writing in an effort to
harmonize and give effect to all the provisions of the contract so that none will be
rendered meaningless.”).

We therefore agree with the district court that the

subcontract did not incorporate the FAR’s ten-day notice requirement for
termination by default.
Next, Ragghianti argues that PRBC’s termination of the subcontract did not
comply with the two-day notice and opportunity-to-cure requirements set forth in
Article 10.1 of the subcontract.

That provision specified PRBC’s remedies,

including terminating the subcontract for default, in the event Ragghianti “fail[ed]
to provide sufficient properly skilled workers, adequate supervision or material of
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the proper quality,” among other things. Article 10.1 also entitled Ragghianti to
written notice of the condition causing the default and two days to cure it or, if that
was not possible, the opportunity for a good-faith demonstration that it was
“attempting to expeditiously resolve the condition.”
Based on the evidence presented over the course of the five-day bench trial,
the district court found that the February 16, 2012 failure-to-perform letter served
to notify Ragghianti in writing that the slab on grade poured on February 14 was
deficient and needed to be remedied. The district court further determined that
Ragghianti failed to remedy the condition within two days and that it did not even
begin to remedy it until after the morning of February 22—six days after
Ragghianti received the failure-to-perform letter. Then, when Ragghianti finally
began to break up the deficient concrete for removal and replacement on February
22, Ragghianti used only one worker and one piece of equipment (borrowed from
PRBC) to do so. So PRBC issued the notice-of-termination letter, terminating the
subcontract for default, on February 22. Based on these facts, all of which find
support in the record, the district court concluded that Ragghianti received notice
and an opportunity to cure—or to make a good-faith attempt at curing—the faulty
slab on grade in accordance with Article 10.1 of the subcontract. We find no clear
error in any of the district court’s factual findings or in its ultimate conclusion that
PRBC terminated the contract for default.
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We also agree with the district court that PRBC followed the proper
procedure in terminating Ragghianti’s subcontract for default. Though Ragghianti
argues that the failure-to-perform letter did not satisfy the two-day notice
requirement because it did not specifically mention the possibility of termination,
nothing in Article 10.1 required PRBC’s notice to specify which remedy it would
pursue. Instead, Article 10.1 merely required PRBC to provide notice that one or
more of nine enumerated failures to perform had occurred before it pursued any
available remedy. The letter plainly did that. As for Ragghianti’s contention that it
was entitled to a new two-day notice after it began to break up the concrete on
February 22, nothing in Article 10.1 of the subcontract required PRBC to renew its
notice before invoking termination by default, particularly under the circumstances
here, where Ragghianti effectively did no more than go through the motions of
attempting to cure its deficient performance.
C.
In its third argument on appeal, Ragghianti takes issue with the scope of
damages that the district court awarded to it.

The district court held that

Ragghianti was entitled to damages for its unpaid furnished labor and materials,
totaling $392,000. But the district court denied Ragghianti’s claim for damages for
unearned lost profits, unabsorbed home office overhead, and increased costs

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attributable to delay. Ragghianti argues on appeal that, under the Miller Act or in
quantum meruit, it is entitled to damages caused by PRBC’s delay.
Although damages for delay are generally available under the Miller Act,
United States, for Use & Benefit of Pertun Constr. Co. v. Harvesters Grp., Inc.,
918 F.2d 915, 916 (11th Cir. 1990), in this case, the subcontract contained a “no
damages for delay” clause. Such clauses are generally enforceable under Texas
law, see Green Int’l, Inc., 951 S.W.2d at 387, and Ragghianti does not argue
otherwise.
Instead, Ragghianti points to Section 9 of Exhibit G to the subcontract as
allowing Ragghianti to submit a claim for delay damages.

Section 9 grants

Ragghianti the same “rights and obligations” as the Construction Manager under
the terms of the Prime Contract.

The Prime Contract, in turn, allows the

Contractor to make a claim for an adjustment in response to the Contracting
Officer’s change orders, and such adjustments include costs imposed by delay. So
Ragghianti contends that it is likewise entitled to delay damages under the terms of
its subcontract. 3
The district court rejected this argument on two grounds: first, the Prime
Contract does not in fact entitle PRBC to delay damages as Ragghianti claims; and

3

We note that the subcontract similarly allows Ragghianti to submit claims to adjust the
subcontract price in response to change orders, and to serve written notice if Ragghianti believes
a change order is warranted.
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second, Ragghianti failed to serve any notice or claim for an adjustment as
required by Articles 9.2 and 9.4 of the subcontract. Because we find no clear error
in the district court’s determination that Ragghianti failed to serve written notice,
we need not consider the first basis for the district court’s rejection of Ragghianti’s
claim.

Under the subcontract, compliance with the notice requirement is a

condition precedent to Ragghianti’s right to an adjustment. See Emerald Forest
Util. Dist. v. Simonsen Constr. Co., 679 S.W.2d 51, 54 (Tex. Ct. App. 1984), writ
ref’d n.r.e. (Mar. 20, 1985) (“When a contract provides for a particular form of
notice, compliance with such provisions is a condition precedent to invoking the
contract rights which are conditioned on the notice.”). Since Ragghianti failed to
provide such notice, the district court correctly denied Ragghianti’s claims for
delay damages under the subcontract.
Ragghianti also challenges the district court’s determination that Ragghianti
was not entitled to damages in quantum meruit pursuant to the cardinal-change
doctrine.

The cardinal-change doctrine “provide[s] a breach remedy for

contractors who are directed by the Government to perform work which is not
within the general scope of the contract.” Edward R. Marden Corp. v. United
States, 442 F.2d 364, 369 (Ct. Cl. 1971).

A “cardinal change” is one that

“fundamentally alters the contractual undertaking” such that it is “not
comprehended by the normal Changes clause.” Id.
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Ragghianti argues on appeal that the district court “misconstrued” the
doctrine by looking to the final product rather than to the “entire undertaking of the
contractor” to determine whether any of PRBC’s alterations to the subcontract
wrought a cardinal change. Id. at 370. But the district court specifically concluded
that the changes identified by Ragghianti “were reasonably expected” and did not
“demonstrate that Ragghianti’s undertaking of the Project was materially altered or
that PRBC required work from Ragghianti that was not essentially the same work
as the parties bargained for when the contract was awarded.” So the district court
used the appropriate baseline against which to measure a cardinal change. We find
no error in its analysis.
D.
Finally, Ragghianti challenges the district court’s denial of Ragghianti’s
attorneys’ fees and granting of PRBC’s attorneys’ fees. We review the district
court’s award and denial of attorneys’ fees for an abuse of discretion. Legg v.
Wyeth, 428 F.3d 1317, 1320 (11th Cir. 2005); Florence Nightingale Nursing Serv.,
Inc. v. Blue Cross/Blue Shield of Alabama, 41 F.3d 1476, 1485 (11th Cir. 1995).
We cannot conclude that the district court abused its discretion with respect to
either decision.
Turning first to the district court’s denial of fees to Ragghianti, Ragghianti
sought and the district court denied attorneys’ fees against PRBC, Liberty Mutual,
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and Safeco Insurance under the Miller Act. Attorneys’ fees may be awarded under
the Miller Act in accordance with an enforceable contractual provision or where
evidence shows the “opponent has acted in bad faith, vexatiously, wantonly, or for
oppressive reasons.” F.D. Rich Co. v. United States for Use of Indus. Lumber Co.,
417 U.S. 116, 129 (1974). Ragghianti has shown neither, so the district court
correctly denied Ragghianti’s request for attorneys’ fees.
As for Ragghianti’s suggestion that it is entitled to attorneys’ fees against
PRBC for its successful breach-of-contract claim, Ragghianti has waived any such
argument since Ragghianti failed to brief it. See Carmichael v. Kellogg, Brown &
Root Servs., Inc., 572 F.3d 1271, 1293 (11th Cir. 2009) (“[A] legal claim or
argument that has not been briefed before the court is deemed abandoned and its
merits will not be addressed.” (quotation omitted)); Green Int’l, Inc., 951 S.W.2d
at 389 (“[I]f no one objects to the fact that the attorney’s fees are not segregated as
to specific claims, then the objection is waived.”).
Nor did the district court abuse its discretion in awarding PRBC attorneys’
fees.

Ragghianti argues that PRBC cannot obtain attorneys’ fees under the

subcontract’s indemnification provisions because they fail to comply with the fairnotice requirements. As we have explained, however, in light of the causes of
action at issue in this case, the subcontract did not need to comply with the fairnotice requirements.
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Ragghianti finally challenges the district court’s order directing PRBC to file
a motion for attorneys’ fees and costs under Federal Rule of Civil Procedure 54,
which Ragghianti argues cannot apply where attorneys’ fees are recovered under
an indemnity provision.

However, Rule 54 does not foreclose motions for

attorneys’ fees provided for by contract.

Capital Asset Research Corp. v.

Finnegan, 216 F.3d 1268, 1269-70 (11th Cir. 2000); see also Richardson v. Wells
Fargo Bank, N.A., 740 F.3d 1035, 1039–40 (5th Cir. 2014). And “district courts
enjoy broad discretion in deciding how best to manage the cases before them.”
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997). We
cannot conclude that the district court erred in directing PRBC to file a post-trial
motion for attorneys’ fees.4
III. Conclusion
For the reasons stated above, the judgment of the district court is affirmed in
all respects.
AFFIRMED.

4

The district court denied without prejudice PRBC’s post-trial motion for attorneys’ fees,
given Ragghianti’s notice of appeal.
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TJOFLAT, Circuit Judge, concurring:
For the reasons given in the court’s considered opinion, I concur to affirming
the district court in all respects because Ragghianti cannot show that its
subcontract entitled it to the damages it sought. I write separately to emphasize
that this is a simple dispute between experienced, sophisticated parties who
contracted intelligently and voluntarily, as evidenced by their corporate histories
and renegotiations during the course of dealings. PRBC and Ragghianti entered
into a subcontract with Ragghianti to provide the building foundation, slab on
grade, miscellaneous concrete, and site concrete to the Project. Ragghianti failed
to fully uphold its end of the bargain. As a result, PRBC received damages. Any
inference of Ragghianti exploiting PRBC as a vulnerable, unseasoned entity is
tenuous.

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