Panel Specialists, Inc. v. Tenawa Haven Processing, LLC

Filing 141

MEMORANDUM AND ORDER granting in part and denying in part 136 Motion for Reconsideration. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 2/13/19. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PANEL SPECIALISTS, INC.,
Plaintiff/Counterclaim Defendant,
v.

No. 16-4140-SAC

TENAWA HAVEN PROCESSING, LLC.,
Defendant/Counterclaim Plaintiff.
MEMORANDUM AND ORDER
This contractual dispute action is over the instrumentation and
electrical (“I&E”) services provided by the plaintiff/counterclaim defendant
Panel Specialists, Inc. (“PSI”) in the construction of a natural gas processing
plant owned by the defendant/counterclaim plaintiff Tenawa Haven, LLC
(“Tenawa”). This court filed an order on December 28, 2018, (ECF# 135)
deciding the parties’ pending dispositive motions. Tenawa has filed a motion
to reconsider. ECF# 136. It asks the court to reconsider the denial of its
motion for partial summary judgment and cure what it argues is an “internal
inconsistency” in the court’s findings by granting summary judgment to it.
ECF# 136, p. 1. The court finds no such inconsistency and denies Tenawa’s
motion for the reasons stated herein.
Because the order denying Tenawa’s summary judgment motion
was neither dispositive nor a final judgment, D. Kan. Rule 7.3(b) is
applicable and requires a motion to reconsider be based on: “(1) an

intervening change in controlling law; (2) the availability of new evidence; or
(3) the need to correct clear error or prevent manifest injustice.” “Thus, a
motion for reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law.”
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2004). A
motion to reconsider is not the losing party’s opportunity to rehash
arguments already addressed and rejected, “to make its strongest case[,] or
to dress up arguments that previously failed.” Voelkel v. GMC, 846 F. Supp.
1482, 1483 (D. Kan.), aff'd, 43 F.3d 1484 (10th Cir. 1994). A decision on a
motion to reconsider is committed to the court’s “considerable discretion.”
Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir.
1996), cert. denied, 520 U.S. 1181 (1997).
In moving for summary judgment, Tenawa asked the court to
enforce PSI’s 2013 published price list as constituting the governing
schedule of rates under the Master Service Agreement (“MSA”) which was
never properly modified, superseded, or replaced according to the MSA’s
terms. The motion also sought a finding that Tenawa never received written
notice of PSI’s rate increase and never gave its written approval of a rate
increase. Based on these findings and conclusions, Tenawa wanted the court
to apply the 2013 published price list as a schedule of rates and thereby
reduce PSI’s claimed damages by $244,096.16. ECF# 135.

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The court denied both parties’ summary judgment motions on
this very issue and found “a question of material fact over whether there
was an agreement that this published price list would constitute a schedule
of rates for the life of the project.” ECF# 135, p. 36. It did so only after fully
describing the parties’ competing evidence and arguments. The court
emphasized that, “[t]he parties’ performance under the MSA does not
definitively point to a shared understanding about the intended purpose and
effect of the 2013 published price list.” Id. Earlier in the order, the court
referenced this price list and observed, “[t]he parties’ understandings differ
over this price list’s purpose, effect and operation.” Id. at p. 5. In short, the
court found the parties’ testimony over their understanding of this provision
to be conflicting and the parties’ evidence of their performance under the
MSA as not resolving their disputed understandings. The court also
expressed:
There is no direct evidence from 2013 or 2014 that they [the parties]
discussed and reached an understanding about this published price list
constituting a schedule of rates binding under the MSA and subject to
its Section Six provisions on Method and Time of Payments. At best,
there are only arguable and competing inferences to be drawn from
the ticketing, invoicing, reviewing and approving of tickets without
objection, and auditing rights under the MSA.
The parties’ purchase order in December of 2013 merely
grouped together all of PSI’s 2013 submissions, including the price list,
and referred to them as the, “Earlier Budgetary Estimate dated
12/7/13.” ECF# 104-1, p. 10. And before PSI began its actual
construction work on the Project site, Tenawa requested from PSI an
updated estimate in July of 2014. PSI provided the updated estimate
that increased the total cost of its work by more than 40%. Tenawa
simply responded, “looks good.” The parties’ conduct does not reveal
much of a shared understanding about the purpose and effect of these
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“estimates” and the documents submitted in support of them. The
sides differ on whether PSI’s original or updated submission is
controlling, but they call both “estimates.” Tenawa would have the
original estimate be a “schedule,” and PSI would have both estimates
be no more than “bids.” Because the MSA does not specifically address
“estimates,” because the parties genuinely dispute how their dealings
were intended to be covered by the MSA, and because there are
credibility issues raised as to the parties’ testimony and affidavits on
this issue, the court denies summary judgment for both sides.
ECF# 135, pp. 36-37.
In moving for reconsideration, Tenawa believes the court made
two findings that compel a summary judgment ruling in Tenawa’s favor on
this issue. The first finding is that the parties did not amend the MSA and did
not follow the MSA’s terms for changing a schedule of rates. ECF# 135, p. 8.
The second finding is that, “the Bergerons’ testimony certainly supports a
finding that they believed the price list was controlling when the MSA was
executed, . . . .” Id. at 36. Tenawa essentially contends that there was not
enough evidence to disagree with the Bergerons’ testimony and with
Ameringer’s testimony as to require submission to the jury. In short, Tenawa
wants the court to weigh the evidence and decide the dispute by concluding
that the 2013 published price list could be nothing else than a schedule of
rates under the MSA. Summary judgment standards preclude this result.
Tenawa’s arguments show no internal inconsistency in the
court’s reasoning. The court never found that the 2013 published price list
constituted a schedule of rates under the MSA and that conclusion is not
compelled by the court’s two findings cited above. In summarizing the
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Bergerons’ testimony about the purpose and force of the 2013 published
price list, the court did not use “controlling” as equating with a “schedule of
rates.” Rather, the court used “controlling” as arguably consistent with PSI’s
position that the price list’s effect was not fixed by the MSA’s terms but by
the ongoing practices of updating, bidding or estimating practices evidenced
in this transaction. The court’s summary judgment order sets out the
competing evidence and inferences creating a genuine issue of material fact
over the parties’ understanding of the purpose and effect of the 2013
published price list. Finally, this genuine issue of material fact is not
inconsistent with the court’s findings that the MSA was not amended and
that the parties did not follow Section 6 of the MSA. Nothing argued in
Tenawa’s memoranda seeking reconsideration persuades this court that its
findings support only one conclusion, that is, the 2013 published price list
was what the parties jointly understood to be the governing schedule of
rates under the MSA. Tenawa argues it defies “common sense” for the
parties to have a MSA without settling such a key term as the schedule of
rates. If so, then common sense is also subject to question over why the
parties did not label or designate the price list as a schedule of rates, did not
confirm the price rates when the significantly higher 2014 estimate was
submitted, and did not enforce the price rates during the actual performance
of the contract. The court’s analysis and findings in its summary judgment

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order are more than sufficient to sustain a genuine issue of material fact
over the parties’ intentions concerning this published price list.
IT IS THEREFORE ORDERED that Tenawa’s motion to reconsider
(ECF# 136) the court’s ruling (ECF# 135) denying Tenawa’s Motion for
Partial Summary Judgment to Enforce Plaintiff’s Published Price List (ECF#
110) is granted insofar as the court has reconsidered its ruling but is denied
in that court sustains its prior ruling denying summary judgment.
Dated this 13th day of February, 2019, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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