Encon Arizona LLC v. Kiewit Infrastructure West Company

Filing 166

ORDER: Kiewit's Motion to Amend Findings and Judgment (Doc. 161 ) is GRANTED. TPAC shall submit a proposed amended Findings and Judgment in conformance with the rulings herein within 7 days of the date of this order. Signed by Judge Douglas L Rayes on 5/13/2024. (KJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Encon Arizona LLC,
Plaintiff,

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v.

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Kiewit Infrastructure West Company,

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Defendant.

No. CV-19-05364-PHX-DLR
ORDER

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Before the Court is Defendant/Counterclaimant Kiewit Infrastructure West’s

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(“Kiewit”) Motion to Amend Findings and Judgment, or Alternatively, Motion for New

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Trial on Issues Presented. (Doc. 161.) The motion is fully briefed (Docs. 164, 165), and

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the Court finds oral argument unnecessary. As explained below, the motion is granted.

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After issuing its findings of fact and conclusions of law following a bench trial, the

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Court granted in part Kiewit’s motion to set aside or amend certain findings of fact and

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conclusions of law. The Court directed Plaintiff/Counter-defendant, Econ Arizona, LLC,

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dba TPAC (“TPAC”) to submit a proposed form of judgment. The Court accepted and

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entered the proposed form of judgment submitted by TPAC. Kiewit’s motion challenges

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three aspects of that judgment: (1) the inclusion of Traveler’s Surety as a party to the

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judgment; (2) an award of prejudgment interest and (3) the determination that TPAC was

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the prevailing party.

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Regarding the inclusion of Travelers as a party to the judgment, Kiewit rightfully

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notes that in the Joint Pretrial order (Doc. 105 at 32), the parties agreed that the claims

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against and defenses of the third-party sureties would be reserved and those clams and

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defenses—and the sureties themselves—could be excluded from the trial between Kiewit

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and TPAC. As agreed by the parties in the Joint Pretrial order, there were no issues of

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surety bond claim or defenses presented at trial. There is no basis for including Travelers

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Surety as a party subject to judgment. The Court erred in entering the proposed order

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including Travelers Surety in the judgment.

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Regarding the award of pretrial interest, Kiewit rightfully notes that the only basis

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for a finding of pretrial interest would be A.R.S. § 44-1201(B) because prejudgment

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interest was not provided in the Material Contract. Prejudgment interest is awarded under

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that statute only for liquidated damages. The party seeking prejudgment interests bears the

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burden of proof. Black Gold Coal v. Shawville Coal Co., 730 F.2d 941, 944 (3rd Cir.

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1984). Kiewit did not waive its right to contest prejudgment interest. A waiver cannot be

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found from the fact that TPAC referred to prejudgment interest in its pleadings and post-

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trial filings.

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Whether the damages awarded TPAC, for which it seeks prejudgment interest, were

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liquidated was never litigated nor decided by the Court. The Court did not consider or

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determine what, if any, of the damages awarded to TPAC were liquidated. Kiewit’s motion

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and its reply list several facts in the record that suggest TPAC’s claim was not liquidated.

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Necessary factual findings have not been made one way or the other. Although both

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TPAC’s closing argument (Doc. 139) and its proposed findings of fact and conclusions of

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law (Doc. 140) raise the issue of prejudgment interest, no facts are argued or proposed that

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show that the damages were liquidated in support of the claim for prejudgment interest.

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The Court erred in entering the proposed judgment to include prejudgment interest.

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Regarding the finding that TPAC was the prevailing party, that issue is fully briefed

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by TPAC in its Motion for an Award of Attorney Fees (Doc. 157) and by Kiewit in its

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response to TPAC’s motion (Doc. 159). The Court has not yet ruled on that motion, and

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therefore has not determined who (if anyone) is the prevailing party. There was no basis

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for TPAC to preemptively be declared the prevailing party. This issue will be determined

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when the Court rules on TPAC’s motion for attorney fees. The Court erred entering the

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proposed order declaring TPAC the prevailing party.

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IT IS ORDERED that Kiewit’s Motion to Amend Findings and Judgment (Doc.
161) is GRANTED.

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IT IS FURTHER ORDERED that TPAC shall submit a proposed amended

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Findings and Judgment in conformance with the rulings herein within 7 days of the date of

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this order.

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Dated this 13th day of May, 2024.

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Douglas L. Rayes
United States District Judge

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