Panel Specialists, Inc. v. Tenawa Haven Processing, LLC, No. 5:2016cv04140 - Document 135 (D. Kan. 2018)

Court Description: MEMORANDUM AND ORDER denying 100 Motion for Partial Summary Judgment; granting 102 Motion for Summary Judgment; denying 103 Motion for Partial Summary Judgment and 110 Motion for Partial Summary Judgment; granting in consistency with the order 130 Motion to Strike; granting 106 Motion for Partial Summary Judgment and granting 108 Motion for Summary Judgment. See Memorandum & Order for details. Signed by U.S. District Senior Judge Sam A. Crow on 12/28/18. (msb)

Download PDF

Panel Specialists, Inc. v. Tenawa Haven Processing, LLC Doc. 135 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS PANEL SPECI ALI STS, I NC., Plaint iff/ Count erclaim Defendant , v. No. 16- 4140- SAC TENAWA HAVEN PROCESSI NG, LLC., Defendant / Count erclaim Plaint iff. MEMORANDUM AND ORDER This is cont ract ual disput e over t he const ruct ion of a nat ural gas processing plant owned by t he defendant / count erclaim plaint iff Tenawa Haven, LLC ( “ Tenawa” ) for which t he plaint iff/ count erclaim defendant Panel Specialist s, I nc. ( “ PSI ” ) cont ract ed and perform ed inst rum ent at ion and elect rical services. The pending disposit ive m ot ions include: PSI ’s Mot ion for Part ial Sum m ary Judgm ent on t he I ssue of Breach of Cont ract for Delay ( ECF# 100) ; Tenawa’s Mot ion for Sum m ary Judgm ent on PSI ’s Unj ust Enrichm ent / Quant um Meruit Claim ( ECF# 102) ; PSI ’s Mot ion for Part ial Sum m ary Judgm ent on Cont ract s ( ECF# 103) ; Tenawa’s Mot ion for Part ial Sum m ary Judgm ent on Mechanic’s Lien Claim ( ECF# 106) ; Tenawa’s Mot ion for Sum m ary Judgm ent on At t orney’s Fees and I nt erest ( ECF# 108) ; Tenawa’s Mot ion for Part ial Sum m ary Judgm ent t o Enforce Plaint iff’s Published Price List ( ECF# 110) ; and Tenawa’s Mot ion t o St rike PSI ’s Reply ( ECF# 128) and for Leave t o file a Sur- Reply ( ECF# 130) . Dockets.Justia.com SUM M ARY JUD GM EN T STAN D ARD S Ult im at ely, a court grant s sum m ary j udgm ent “ against a part y who fails t o m ake a showing sufficient t o est ablish t he exist ence of an elem ent essent ial t o t hat part y's case, and on which t hat part y will bear t he burden of proof at t rial.” Celot ex Corp. v. Cat ret t , 477 U.S. 317, 322 ( 1986) ; see Fed. R. Civ. P. 56. But first , t he m ovant “ always bears t he init ial responsibilit y of inform ing t he dist rict court of t he basis for it s m ot ion, and ident ifying t hose port ions of ‘t he pleadings, deposit ions, answers t o int errogat ories, and adm issions on file, t oget her wit h t he affidavit s, if any,’ which it believes dem onst rat e t he absence of a genuine issue of m at erial fact .” I d. at 323. This does not m ean t he m oving part y m ust negat e t he ot her side's claim s or defenses t hrough affidavit s. I d. Upon a properly support ed m ot ion for sum m ary j udgm ent , t he nonm oving part y m ust go beyond t he pleadings, t hat is, m ere allegat ions or denials, and set fort h specific fact s showing a genuine issue of m at erial fact for t rial, relying upon t he t ypes of evident iary m at erials cont em plat ed by Rule 56. I d. A court decides t he m ot ion “ t hrough t he prism of t he subst ant ive evident iary burden.” Anderson v. Libert y Lobby, I nc., 477 U.S. 242, 254 ( 1986) . So, a fact ual disput e is “ m at erial” only if it “ m ight affect t he out com e of t he suit under t he governing law.” I d. at 248. To be genuine, a fact ual disput e requires m ore t han a m ere scint illa of evidence in support of a part y's posit ion. I d. at 252. This m eans t hat t he purpose of Rule 56 “ is not 2 t o replace conclusory allegat ions of t he com plaint or answ er wit h conclusory allegat ions of an affidavit .” Luj an v. Nat 'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct . 3177, 111 L.Ed.2d 695 ( 1990) . At t he sam e t im e, t he sum m ary j udgm ent st age does not aut horize t he court ’s weighing of t he evidence, credit ing som e over ot her, or det erm ining t he t rut h of disput ed m at t ers, but it shall decide whet her a genuine issue of m at erial fact for t rial exist s. Tolan v. Cot t on, 572 U.S. 650, 656 ( 2014) . The court perform s t his t ask wit h a view of t he evidence t hat favors m ost t he part y opposing sum m ary j udgm ent . I d. at 657. Sum m ary j udgm ent m ay be grant ed if t he nonm oving part y's evidence is m erely colorable or is not significant ly probat ive. Libert y Lobby, 477 U.S. at 250–51. Essent ially, t he inquiry is “ whet her t he evidence present s a sufficient disagreem ent t o require subm ission t o t he j ury or whet her it is so one- sided t hat one part y m ust prevail as a m at t er of law.” I d. at 251–52. SUM M ARY OF UN CON TROVERTED FACTS These fact s serve as t he background for t he court ’s rulings on t he pending m ot ions. The court incorporat es relevant st ipulat ions and general fact s t hat fram e t he issues cent ral in t he m ot ions. I t leaves t he fact s m ore specific t o t he m ot ions for lat er discussion. I n 2013, Next Generat ion Processing, LLC ( “ NGP” ) decided t o build a cryogenic nat ural gas processing facilit y in Haven, Kansas, ( “ Plant ” ) t o st raddle Panhandle East ern Pipe Line’s int erst at e pipeline and t o serve gas 3 producers t hroughout sout hwest Kansas, nort hwest Oklahom a, and t he Texas Panhandle. NGP solicit ed invest ors and Tenawa was creat ed t o own and operat e t his nat ural gas facilit y. Greg Am eringer, owner of NGP, acquired an equit y int erest in Tenawa wit h it s form at ion. PSI ’s business is providing inst rum ent at ion and elect rical ( “ I &E” ) services t o t he oil and gas indust ry. PSI ’s president is Earl Bergeron. He personally perform ed som e of PSI ’s work for Tenawa in planning and est im at ing t he work and in doing and supervising const ruct ion work at t he Plant . I n 2012, Mr. Am eringer approached Mr. Bergeron about I &E work for t he proposed plant and provided him wit h inform at ion. Working from t hat , PSI furnished on March 21, 2012, an init ial budget est im at e for I &E work t ot aling $6.4 m illion. PSI revised it s est im at e in Sept em ber of 2013 t o $4.76 m illion. Mr. Am eringer request ed PSI t o provide Tenawa wit h a let t er laying out PSI ’s scope of work and est im at ing it s price. Mr. Bergeron sent a let t er dat ed Decem ber 7, 2013, t hat est im at ed PSI ’s price at $4.76 m illion and st at ed in part : Please not e t hat t he original price of $4,760,000 dat ed Sept . 13, 2013 was a prelim inary budget quot e based on t he inform at ion provided by Tenawa and work perform ed on sim ilar proj ect s. Panel Specialist s I nc. will work on t he Haven Proj ect based on a cost - plus basis. Freight and any t axes will also apply t o part s and/ or equipm ent sales. I have at t ached a price list . 4 ECF# 104- 1, p. 8. The at t ached price list was t it led, “ Published Price List Field Services,” and was dat ed, “ 2- 1- 13.” I d. at p. 9. The part ies’ underst andings differ over t his price list ’s purpose, effect and operat ion. Mr. Am eringer followed up wit h an em ail t o Mr. Bergeron at t aching a purchase order signed and dat ed Decem ber 13, 2013, by Mr. Am eringer. Also at t ached t o t his em ail were Mr. Bergeron’s let t er of Decem ber 7, 2013, PSI ’s 2- 1- 13 published price list , t he “ Panel Scope” spreadsheet dat ed Sept em ber 13, 2012, cert ain I &E design and specificat ion docum ent s, and t he Mast er Service Agreem ent ( “ MSA” ) signed by Mr. Am eringer and also dat ed Decem ber 13, 2013. Mr. Am eringer’s em ail asked PSI t o review, sign, and ret urn t he MSA. This purchase order for $4.76 m illion, No. HAV- 121313- 002, ident ified PSI as t he vendor and described it s work as “ Cost Plus Proposal for Haven I nst rum ent at ion and Elect rical Engineering per Panel Specialist Cover Let t er and Earlier Budget ary Est im at e dat e 12/ 7/ 13.” ECF# 104- 1, p. 10. Mr. Bergeron signed t he MSA. The part ies disput e t he m eaning, scope and effect of cert ain provisions in t he MSA. The following are som e of t he provisions in quest ion: 1. W ORK OR SERVI CES COVERED ( a) From t im e t o t im e during t he t erm hereof, Com pany [ Tenawa] , as owner and/ or operat or of . . . , m ay request , eit her orally or in writ ing, t hat Cont ract or [ PSI ] perform work or render services for t he benefit or account of Com pany. I f Cont ract or agrees t o perform such work or services for Com pany, t hen, subj ect t o t he provisions of Sect ion 20 below which addresses pot ent ial conflict s bet ween t he t erm s of “ work orders,” “ service orders,” “ j ob or delivery t icket s,” “ invoices,” or ot her 5 sim ilar form ( s) for a part icular j ob and t he t erm s of t his Agreem ent , t his agreem ent shall cont rol and govern t he perform ance of all such work or services and t he relat ionship of t he part ies relat ing t heret o. . . . . . . . ( c) This Agreem ent does not grant Cont ract or an exclusive right or cont ract t o perform all services described in Exhibit I required from t im e t o t im e by Com pany, . . . . Neit her Com pany nor Cont ract or shall be bound by t he t erm s hereof unt il work or services have been aut horized by Com pany and accept ed by Cont ract or. 2. CON TRACTOR’S OBLI GATI ON S Cont ract or shall: ( a) Perform all work or services hereunder wit h due diligence and in a good and workm anlike m anner in com pliance wit h t he provisions hereof, as well as t he provisions of Exhibit s I , I I I and I V here t o. . . . . . . . . 6. M ETH OD AN D TI M E OF PAYM EN T ( a) Cont ract or shall furnish an invoice t o Com pany in a form sat isfact ory t o Com pany wit hin t hirt y ( 30) days of com plet ion of t he work done pursuant heret o. Com pany shall pay for t he w ork perform ed hereunder wit hin t hirt y ( 30) days aft er t he receipt of such invoices. . . . All invoices shall det ail t he work done, t he equipm ent or supplies and m at erials furnished by Cont ract or for t he work, and t he rat es applicable t o each it em in accordance wit h t he schedule of rat es furnished by Cont ract or ( or w it h succeeding current rat e schedules if approved in writ ing by Com pany) , or at bid prices where applicable. I f an increase in rat es is not sat isfact ory t o Com pany, Com pany shall have t he right t o cancel t his Agreem ent by giving Cont ract or not ice t o t hat effect . Cont ract or shall provide Com pany not less t han t hirt y ( 30) days writ t en not ice prior t o t he proposed effect ive dat e of changes in said rat e schedule. . . . . . . . . 1 4 . N OTI CES AN D I N QUI RI ES All not ices and inquires wit h regard t o t his Agreem ent shall be in writ ing and shall be delivered eit her personally t o t he designat ed represent at ive of t he part y being not ified or sent by regist ered m ail, ret urn receipt request ed, t o t he address of each part y set fort h on t he signat ure pages hereof. All not ices shall be effect ive as of t he t im e received by t he addressee. . . . . 6 1 7 . AM EN D M EN TS This agreem ent m ay be am ended only by an inst rum ent in writ ing signed by bot h part ies heret o. . . . . 1 9 . GOVERN I N G LAW THI S AGREEMENT, AND THE RI GHTS AND OBLI GATI ONS OF THE PARTI ES HEREUNDER, SHALL BE CONSTRUED AND GOVERNED I N ACCORDANCE WI TH THE LAWS OF THE STATE OF TEXAS. . . . 2 0 . EN TI RE AGREEM EN T This inst rum ent em bodies t he ent ire agreem ent of t he part ies as t o t he subj ect m at t er hereof. There are no prom ises, t erm s, condit ions or obligat ions ot her t han t hose cont ained herein. Should t he part ies heret o ent er int o any fut ure form al writ t en agreem ent s ( excluding any print ed or ot her pre- prepared form ( s) of “ work orders” , “ service orders” , “ j ob or delivery t icket s” , “ invoices” or ot her sim ilar form ( s) subm it t ed t o Com pany by Cont ract or) specially prepared t o provide for a part icular j ob t o be done or service t o be rendered by Cont ract or, t hen, in t he event of a conflict bet ween t he t erm s of such agreem ent and t he t erm s of t his Agreem ent , t he t erm s of t he special agreem ent for t he part icular j ob or services shall prevail. I n t he event of a conflict bet ween t he provisions hereof and t he provisions of any print ed or ot her pre- prepared form ( s) of “ work orders,” “ service orders,” “ j ob or delivery t icket s,” “ invoices,” or ot her sim ilar form ( s) subm it t ed t o Com pany by Cont ract or in connect ion wit h any work or services perform ed hereunder, t he provisions of t his Agreem ent shall prevail and be cont rolling. . . . . EXH I BI T I W ORK D ESCRI PTI ON AN D RATE SCH ED ULE 1. Work To Be Perform ed: Panel Specialist s I nc. will supply labor and m at erials t o inst all all inst rum ent at ion and elect rical cont rol syst em s t o ensure proper plant funct ioning. . . . 2. Rat es For Above Work: ( Rat es based on at t ached schedule supplied by Cont ract or or if a part icular work order is bid, t he bid price will becom e t he basis for Cont ract or’s com pensat ion.) Panel Specialist s will perform t he above described work on a Cost - Plus Basis per Panel Specialist s rat es included in t he Purchase Order. The Prelim inary Est im at e for Panel Specialist work is $ 4 ,7 6 0 ,0 0 0 . 7 ECF# 104- 1, pp. 15- 18, 22- 23, 30. I t is uncont rovert ed t hat t he part ies did not lat er j oint ly sign a docum ent t o am end pursuant t o ¶ 17 above. Nor did t he part ies pursuant t o ¶¶ 6 and 14 provide express writ t en not ice of a proposed change in any schedule of rat es and receive prior express writ t en approval for a change in any schedule of rat es. On July 3, 2014, Mr. Am eringer for Tenawa em ailed Earl Bergeron for PSI asking, “ Per our conversat ion, at t ached is t he I nit ial Cost Est im at e t o be updat ed. Thanks and Have a Great 4t h.” ECF# 104- 1, p. 12. The at t achm ent t o t his em ail is t it led, “ Panel I C Est - 9- 19- 12.pdf.” I d. Mr. Bergeron responded by em ail on t he m orning of July 17, 2014. I t reads, “ Please review t he at t ached updat e and call m e if you have any quest ions.” I d. The at t achm ent t o t his em ail is t it led, “ Panel_Scope_Haven_est im at e _33.xis.” I d. at pp. 12- 13. The at t achm ent is a single page t hat describes t en separat e j obs, e.g., “ Purchase and I nst all all Elect rical Equip required for t he Plant ” wit h an est im at ed t ot al cost of “ 2,500,000.” I d. at p. 14. The at t achm ent does not describe or disclose an est im at ed am ount of work hours and equipm ent needed for each j ob. Nor does it describe or disclose t he hourly rat es or pricing list for t he individual work and equipm ent cost s for any of t he j obs. PSI ’s updat ed est im at e, however, increased t he t ot al cost of it s work t o $6.685 m illion. I d. Mr. Am eringer’s em ail reply sent t hat sam e aft ernoon did not seek any clarificat ion but sim ply said, “ Looks good. See you next week.” I d. at p. 13. No new purchase order issued from 8 updat ed est im at e. But , PSI ’s work at t he Plant sit e did not begin unt il aft er Tenawa received and approved t his updat ed est im at e. This updat e did not include t he cost of PSI ’s work perform ed lat er at t he I nt erconnect Facilit y. PSI provided delivery t icket s for labor and services provided, including per diem s and lodging all of which were approved by Tenawa. Som e of PSI ’s 2014 delivery t icket s charged rat es for work t hat were higher t han t he 2013 price list . PSI says t he higher rat es are what it was charging in 2014. Tenawa point s t o delivery t icket s beginning in t he fall of 2014 t hat included Mr. Bergeron’s work as a program m er being charged at $125 per hour inst ead of $100 per hour. I n t he Spring of 2015, Mr. Earl’s Bergeron’s program m ing rat e increased t o $135 per hour, and Mr. Scot t Bergeron’s t echnician rat e increased from $90 t o $100 per hour. Mr. Bergeron’s wife, Denise, who was PSI ’s Finance Manager, Secret ary, and Treasurer, t est ified t hat not ice of t hese rat e changes cam e in t he delivery t icket s which Tenawa received and signed. The court will discuss t he rem aining fact s in it s analysis of t he m ot ions. PSI ’S M OTI ON FOR PARTI AL SUM M ARY JUD GM EN T ON TEN AW A’S BREACH OF CON TRACT FOR D ELAY COUN TERCLAI M ( ECF# 1 0 0 ) I n it s fact ual cont ent ions in t he pret rial order, Tenawa includes t hat PSI agreed in t he MSA t o perform it s work “ in a t im ely m anner,” and “ wit h due diligence and in a good and workm anlike m anner.” ECF# 95, p. 8. Tenawa specifically borrows t he language from t he MSA in laying out t he 9 t heory of t his claim , “ t hat if, in Tenawa’s opinion, PSI fails t o use reasonable diligence in perform ing t he Work or fails t o perform t he Work according t o t he specificat ions required by t he MSA, Tenawa ‘m ay at it s elect ion t ake over and perform , eit her t hrough it s own em ployees or anot her cont ract or, all or any part of t he work t hen rem aining unperform ed.” I d. To support t his claim , Tenawa alleges, in part , t hat PSI ’s work crew at t he Plant sit e were inexperienced and lacked com pet ent leadership, t hat PSI did not m eet const ruct ion deadlines, and t hat schedules cont inued t o be pushed back causing Tenawa t o bring on anot her I &E cont ract or, I ndust rial Elect ric Com pany ( “ I EC” ) t o assist PSI in com plet ing t he I &E work. Tenawa concludes it s fact ual allegat ions wit h: By lat e March 2015, I EC had t aken over t he vast m aj orit y of PSI ’s Work ( including I &E ordering and inst allat ion) and PSI was rest rict ed t o program m ing and lim it ed com m issioning work only. By t he t im e t hat t he Plant went int o operat ion on May 15, 2015 ( over four m ont hs past t he original deadline) , PSI only had t wo em ployees on sit e, alt hough I EC had a full crew on sit e unt il lat e 2015 t o finish up punchlist I &E work. ECF# 95, p. 10. As for t he financial consequences from PSI ’s delay, Tenawa assert s: When PSI left t he Plant in May 2015, Tenawa had paid it $5.99 m illion ( a 25.8% overrun from PSI ’s budget ary est im at e let t er) , even t hough Tenawa also had t o pay I EC anot her $2.7 Million t o com plet e PSI ’s scope of work. As m ent ioned above, I EC’s work was expedit ed and perform ed on short not ice wit h very t ight deadlines because of delays caused by PSI . The expedit ed nat ure of I EC’s work result ed in Tenawa having t o pay I EC roughly 30% m ore ( or approxim at ely $800,000) t han t hat work would have cost on a norm al proj ect and wit hout being expedit ed. 10 I d. Lat er in t he pret rial order, Tenawa includes t he following am ong it s legal claim s: Addit ionally, t he Work provided by PSI failed t o sat isfy PSI ’s cont ract ual obligat ions and breached t he t erm s of it s cont ract wit h Tenawa because t he Work was delayed. This result ed in Tenawa being forced t o hire I EC t o com plet e PSI ’s Work on an expedit ed basis, which caused approxim at ely $800,000 in increased cost s t o be paid by Tenawa t o I EC t hat would have been avoided had PSI not fallen behind schedule wit h it s work.” I d. at p. 14. PSI seeks sum m ary j udgm ent arguing Tenawa lacks evidence t o prove PSI ’s work delayed t he proj ect . Specifically, t he MSA and relat ed docum ent s st at e no com plet ion dat es or t im e est im at es for PSI ’s work. Tenawa never com m unicat ed t o PSI a com plet ion dat e for it s work. Tenawa never est ablished a proj ect schedule wit h work com plet ion dat es. Tenawa lacks evidence t hat PSI ’s work, as opposed t o t he work of ot hers, caused any delay. ECF# 101, p. 9. PSI insist s Tenawa m ust prove m ore t han som e general delay in PSI ’s work. I t m ust have evidence t hat PSI ’s work delayed t he ent ire const ruct ion proj ect ’s com plet ion and caused financial loss t o Tenawa. PSI furt her assert s Tenawa cannot prove t he durat ion of any delay or consequent ial dam ages from any alleged delay. Tenawa disput es PSI ’s argum ent s as irrelevant , because it s count erclaim does not seek liquidat ed dam ages or lost profit s but only t he increased cost s from paying I EC for expedit ed work. Tenawa explains it s “ claim is based on paragraph 10 of t he MSA” and asks only for t hose lim it ed 11 cost s incurred “ because Tenawa was not sat isfied wit h PSI ’s work on t he Proj ect from a qualit y, t im eliness or organizat ional perspect ive.” ECF# 119, at p. 2. Paragraph 10 provides, in part : 1 0 . FAI LURE TO PERFORM Tim e and qualit y of work are of t he essence of t his Agreem ent . I f, in Com pany’s opinion, Cont ract or should fail at any t im e during t he perform ance hereof t o provide t he necessary crews, t ools, m achinery, equipm ent or m at erials of t he proper perform ance of t he work herein cont ract ed for, or should breach t his Agreem ent in whole or in part , or fail t o use reasonable diligence in t he perform ance hereof, or should not be perform ing t his Agreem ent in t he m anner herein provided, or . . ., t he Com pany m ay at it s elect ion t ake over and perform , eit her t hrough it s own em ployees or anot her cont ract or, all or any part of t he work t hen rem aining unperform ed. . . . I n t he event Com pany t akes over work perform ed or m at erial, equipm ent , m achinery or supplies furnished prior t o such t aking over unt il all work required under t his agreem ent is com plet ed and accept ed by Com pany, at which t im e Com pany’s t ot al cost s and expenses in com plet ing t his work shall be deduct ed from t he am ount which ot herwise would have accrued t o Cont ract or and t he difference, if any, shall be paid by Com pany t o Cont ract or. Tenawa reads ¶ 10 as aut horizing it s t akeover of all or any part of PSI ’s work if, in it s sole opinion, PSI is not providing sufficient crews, is breaching t he MSA, is not using reasonable diligence, or is not perform ing t he MSA. Should it t akeover PSI ’s work, Tenewa assert s it “ has t he right t o charge PSI for t he increased cost of t aking over and perform ing t he work.” ECF# 119, p. 2. Tenawa’s claim under ¶ 10 is based on PSI ’s deficient perform ance in lat e 2014 t hat required bringing I EC on sit e in January of 2015, first only t o assist , but lat er t o t ake over m uch of PSI ’s work. I EC charged Tenawa m ore t han what PSI would have charged, because I EC worked on an expedit ed basis. Since PSI ’s sum m ary j udgm ent m ot ion overlooks Tenawa’s narrowed 12 count erclaim t hat seeks relief only under t he express t erm s of ¶ 10 in t he MSA, Tenawa concludes PSI is not ent it led t o sum m ary j udgm ent . Even if Tenawa’s delay count erclaim pursues right s under t he MSA’s ¶ 10 only, PSI replies t hat Tenawa st ill m ust prove t he fact and durat ion of delay, t he fault of delay not being m ore at t ribut able t o Tenawa, and t he causal connect ion bet ween t he delay and t he addit ional cost . PSI , however, brings forward no legal aut horit y or persuasive argum ent for im posing addit ional elem ent s of proof t o enforce t he lim it ed cont ract ual rem edy. PSI ’s cit at ion of Beaum ont v. Excavat ors & Const ruct ors, I nc., 870 S.W.2d 123, 131 ( Tex. App. 1993) , does not support it s posit ion. PSI ’s argum ent s over Tenawa’s insufficient evidence on schedules or com m it m ent s governing PSI ’s work creat es a genuine issue of m at erial fact on t he reasonableness of PSI ’s t akeover under ¶ 10. PSI ’s reply also includes t hese new argum ent s. Tenawa did not “ t akeover” PSI ’s work. Tenawa did not not ify PSI about “ elect ing” t o exercise t akeover right s under ¶ 10. Tenawa cont inued t o accept PSI ’s perform ance under t he cont ract and, t herefore, lost “ any excuse for ceasing perform ance on it s part .” ECF# 124, p. 14 ( cit ing Balfour Beat t y Rail, I nc. v. The Kansas Cit y Sout hern Railway Co., 173 F.Supp.3d 363, 406 ( N.D. Tex. 2016) ) . Tenawa’s allegat ions are overwhelm ed by t he uncont rovert ed fact s t hat PSI was not t erm inat ed, but com plet ed it s work and rem ains unpaid for som e work. These new argum ent s will not be addressed here. Generally, issues 13 raised for t he first t im e in a reply brief are not considered wit h an except ion for new issues raised in reply t o t he respondent ’s argum ent s. I n re Gold Resource Corporat ion Securit ies Lit igat ion, 776 F.3d 1103, 1118 ( 10t h Cir. 2015) . PSI ’s new argum ent s are replies t o Tenawa’s argum ent s. But , in it s original m ot ion and m em orandum , PSI failed t o address Tenawa’s ¶ 10 delay count erclaim as pleaded in t he pret rial order. ECF# 95, p. 8. “ The Court will not consider argum ent s raised for t he first t im e in a reply brief, part icularly where t he argum ent s could have been m ade in t he first inst ance.” Swim wear Solut ion, I nc. v. Orlando Bat hing Suit , LLC, 309 F. Supp. 3d 1022, 1044 ( D. Kan. 2018) ( int ernal quot at ion m arks and cit at ion om it t ed) . Therefore, t he court will not consider PSI ’s new argum ent s. Som eone could read t he pret rial order, like PSI apparent ly did, and t hink Tenawa’s breach of cont ract claim for delay assert s m ore t han t he exercise of right s and rem edies under ¶ 10 in t he MSA. Consist ent wit h t hese sum m ary j udgm ent proceedings, t he court st rict ly int erpret s Tenawa’s only breach of cont ract count erclaim for PSI ’s delay as exclusively seeking enforcem ent of it s “ t akeover” right s under ¶ 10 and t he MSA’s lim it ed relief, t hat is, t he increased cost s and expenses in com plet ing t he work. PSI ’s sum m ary j udgm ent argum ent s aim at larger t arget s t han t he Tenawa’s ¶ 10 count erclaim . Not hing in t he MSA support s PSI ’s posit ion t hat Tenawa’s exercise of “ t akeover” right s under ¶ 10 is expressly condit ioned upon Tenawa proving PSI m issed, violat ed, or breached any 14 com plet ion dat es found in any cont rolling docum ent s or an est ablished proj ect schedule. Nor has PSI com e forward wit h any legal aut horit y from Texas int erpret ing a “ t akeover” provision as generally requiring such proof. I nst ead, t he MSA provides t hat Tenawa’s exercise of ¶ 10 right s is t riggered by, “ I f, in Com pany’s opinion, Cont ract or should fail . . ., Com pany m ay at it s elect ion t ake over and perform . . . .” ECF# 104- 1, p. 21. This t erm cert ainly confers discret ion on Tenawa wit hin t he bounds of reasonableness and good fait h under t he circum st ances. See Anahuac, I nc. v. Wilkes, 622 S.W.2d 634, 636- 37 ( Tex. Civ. App. 1981) . Tenawa has com e forward wit h affidavit s set t ing fort h t he opinions which t riggered it s ret ent ion and use of I EC, it s declining use of PSI , and it s increased cost s in paying I EC for expedit ed work t hat PSI had been expect ed t o do. Because PSI has not shown t he absence of genuine issues of m at erial fact nor shown t he evidence t o be so one- sided such t hat it m ust prevail as a m at t er of law, t he court denies PSI ’s m ot ion for sum m ary j udgm ent . The court , however, has const rued Tenawa’s count erclaim for breach of cont ract for delay as seeking recovery and relief exclusively under t he lim it ed t erm s of MSA’s ¶ 10. TEN AW A’S M OTI ON FOR PARTI AL SUM M ARY JUD GM EN T ON PSI ’S UN JUST EN RI CH M EN T/ QUAN TUM M ERUI T CLAI M ( ECF# 1 0 2 ) As set out in t he pret rial order, PSI claim s: iii. Unj ust Enrichm ent / Quant um Meruit : PSI perform ed a subst ant ial am ount of design and engineering work for t he I nt erconnect Facilit y t hat was done at t he request of Greg Am eringer. That work was never invoiced, and Tenawa has been unj ust ly enriched t o PSI ’s det rim ent . Moreover, for all work perform ed by PSI t hat was 15 not wit hin it s original scope, Tenawa has accept ed such work, put t he Plant t o it s int ended us and has failed t o properly com pensat e PSI . ECF# 95, p. 12. As for it s dam ages and non- m onet ary relief, PSI set out in t he pret rial order t he following: PSI claim s ent it lem ent t o t he following dam ages and m onet ary relief: i. Unpaid cont ract sum s t ot aling $ 4 9 8 ,0 9 3 .4 6 in labor, equipm ent and m at erials provided t o Tenawa, represent ing am ount s set fort h in delivery t icket s and invoices t hat were reviewed and approved by Tenawa yet rem ain unpaid; . . . . ECF# 95, p. 16. PSI ’s claim ed dam ages also include t he sim ple int erest of $79,097.81 accrued from March 2015 t hrough Oct ober 2015 for Tenawa’s lat e paym ent of $494,361.31, and t he sim ple int erest accruing from March 2015 t hrough j udgm ent for t he unpaid cont ract sum s “ set fort h in delivery t icket s and invoices.” I d. PSI does not include in t he pret rial order any separat e allegat ion of dam ages for it s unj ust enrichm ent / quant um m eruit claim based on “ t hat work [ which] was never invoiced.” I d. at p. 12. Tenawa argues t hat t hroughout discovery PSI ’s unj ust enrichm ent / quant um m eruit ( “ UEQM” ) claim was based exclusively on PSI ’s subm it t ed invoices which were unpaid, and t hat only in t he draft ing of t he pret rial order, did t his claim expand t o ot her work which PSI perform ed for Tenawa but which it never invoiced. Because t he pret rial order includes no addit ional am ount of dam ages for t he work which PSI never invoiced, Tenawa seeks j udgm ent as a m at t er of law. Tenawa addit ionally argues t his UEQM claim is new and barred by t he st at ut e of lim it at ions because it does not relat e back t o t he original filings. Tenawa says it has been prej udiced 16 from not conduct ing discovery on t his new UEQM claim . Finally, highlight ing PSI officials’ adm issions t hat t he MSA governed PSI ’s work, Tenawa concludes t his enforceable cont ract prevent s PSI from recovering on it s new UEQM claim . PSI says it assist ed wit h engineering and planning for t he I nt erconnect Facilit y, it s work was not cont em plat ed or covered as part of t he MSA’s scope of work, and it billed for only part of it s I nt erconnect Facilit y work. PSI reveals it s UEQM claim responds t o Tenawa’s recent claim t hat PSI overbilled for work and service by not using t he 2013 published price list . As Mr. Bergeron, PSI ’s President , reveals in his affidavit , “ I f Tenawa now want s t o renegot iat e t he value of PSI ’s work provided t o Tenawa, PSI int ends t o collect for all of t he m an hours not specifically billed.” ECF# 117- 1, p. 2, ¶13. PSI com pares it s expanded UEQM claim t o Tenawa “ at t em pt ing t o reduce t he am ount s it agreed t o pay PSI t hrough offset s and claim s t hat PSI ‘overbilled’ Tenawa for work and service, none of which were raised prior t o t his Lawsuit .” ECF# 117, p. 4, ¶14. PSI denies it s expanded UEQM claim is new or has caused any unfair surprise or prej udice t o Tenawa. PSI cont ends it s failure t o include in t he pret rial order an it em ized m onet ary am ount of dam ages for t his claim does not preclude going forward and proving t he sam e at t rial. I ndeed, PSI affirm at ively assert s it s UEQM dam ages for I nt erconnect Facilit y work is already “ included in t he am ount s referenced in” it s dam age claim s st at ed in t he pret rial order ( ECF# 117, p. 7) , as here 17 quot ed, “ Unpaid cont ract sum s t ot aling $498,093.46 in labor, equipm ent and m at erials provided t o Tenawa, represent ing am ount s set fort h in delivery t icket s and invoices t hat were reviewed and approved by Tenawa yet rem ain unpaid.” ECF# 95, p. 16. PSI denies t hat it m ust describe t he UEQM dam age claim s in det ail and, if it does, t hen it asks t he court in a foot not e for leave t o am end t he pret rial order. ECF# 117, p. 8. Having quest ioned t he nat ure, ext ent and scope of t heir cont ract ual agreem ent wit h Tenawa, PSI regards it self ent it led t o bring an alt ernat ive UEQM claim . Believing it has com e forward w it h genuine issues of m at erial fact over t he “ reasonable value” of it s work on t he I nt erconnect Facilit y, PSI asks t he court t o deny sum m ary j udgm ent . The court finds no legal basis behind PSI j ust ifying expansion of it s UEQM claim t o unbilled work based on Tenawa’s newer defense t hat PSI billed at excessive rat es. While PSI m ay feel j ust ified in wait ing t o do so, t his does not bear on t he issues t o be decided. The circum st ances do not j ust ify PSI ’s delay or it s failure t o allege any dam ages corresponding t o t his claim . Tenawa paint s t he sit uat ion persuasively: [ T] o dat e, PSI has never ident ified t he specific dam ages it is claim ing relat ed t o t his unbilled work. Tenawa never ident ified t hese alleged dam ages in it s t wo Com plaint s, in it s init ial disclosures, in it s int errogat ory answers, in a deposit ion, or in t he Pret rial Order it self. Tenawa has nowhere t o go t o find out how m uch in dam ages PSI seeks for t his claim . As m ent ioned in t he int roduct ion above, PSI honest ly has no idea whet her PSI is seeking $1,000 in dam ages relat ed t o t his allegedly unbilled work or $1,000,000 in dam ages. 18 ECF# 125, p. 6. PSI does not effect ively disput e t his sum m ary. While PSI is right t hat t he act ual am ount of UEQM dam ages would be a quest ion of fact for t he j ury, t his assum es PSI has alleged som e am ount of dam ages and given t he ot her side t he opport unit y t o discover PSI ’s evidence of recoverable dam ages. Because t his UEQM claim for unbilled work w as not raised unt il t he pret rial order, if t here are no dam ages corresponding t o t his claim alleged in t he pret rial order, t hen t he plaint iff’s UEQM claim is lacking an essent ial elem ent : dam ages. The court does accept PSI ’s posit ion t hat t hese dam ages for unbilled work were alleged and disclosed as part of it s “ unpaid cont ract sum s t ot aling $498,093.46” in t he pret rial order. ECF# 95, p. 16. PSI described t his dam age t ot al as t he “ labor, equipm ent and m at erials provided t o Tenawa, represent ing am ount s set fort h in delivery t icket s and invoices t hat were reviewed and approved by Tenawa yet rem ain unpaid.” ECF# 95, p. 16. PSI clearly describes t his dam age t ot al as represent ing only t he work it invoiced t o Tenawa. Because PSI was subst ant ially specific in describing it s dam age claim in t he pret rial order, t he court is not inclined t o indulge PSI wit h an exceedingly liberal const ruct ion. See Koch v. Koch I ndust ries, I nc., 203 F.3d 1202, 1220 ( 10t h Cir.) , cert . denied, 531 U.S. 926 ( 2000) . PSI ’s expansive reading of it s dam age claim is direct ly cont radict ed by t he plain language of t he pret rial order. The court also finds it quit e not iceable t hat PSI has yet t o assert what am ount of t ot al dam ages represent s t he 19 reasonable value of it s work covered by t he UEQM claim . Having failed t o allege a dam age elem ent t o it s UEQM, PSI ’s claim cannot wit hst and sum m ary j udgm ent . I n a t wo- sent ence foot not e, PSI “ m oves t o am end t he Pret rial Order t o include a specific reference t o quant um m eruit dam ages, in an am ount t o be det erm ined by t he j ury.” ECF# 117, p. 8. PSI only refers t o t he need “ t o avoid m anifest inj ust ice.” I d. The PSI ’s request t riggers t hese st andards: A pret rial order, which m easures t he dim ensions of t he lawsuit , bot h in t he t rial court and on appeal, m ay be m odified “ only t o prevent m anifest inj ust ice.” Fed.R.Civ.P. 16( e) . See Tyler v. Cit y of Manhat t an, 118 F.3d 1400, 1403 ( 10t h Cir.1997) . The part y m oving t o am end t he order bears t he burden t o prove t he m anifest inj ust ice t hat would ot herwise occur. See Koch v. Koch I ndus., I nc., 203 F.3d 1202, 1222 ( 10t h Cir.2000) . The purpose of t he pret rial order is t o “ insure t he econom ical and efficient t rial of every case on it s m erit s wit hout chance or surprise.” See Hull v. Chevron U.S.A., I nc., 812 F.2d 584, 588 ( 10t h Cir.1987) . Because t he issues and defenses of t he lawsuit are defined by t he t erm s of t he order, “ t ot al inflexibilit y is undesirable.” I d. Davey v. Lockheed Mart in Corp., 301 F.3d 1204, 1208 ( 10t h Cir. 2002) . The following fact ors are part of t he relevant considerat ions: “ ( 1) prej udice or surprise t o t he part y opposing t rial of t he issue; ( 2) t he abilit y of t hat part y t o cure any prej udice; ( 3) disrupt ion by inclusion of t he new issue; and ( 4) bad fait h by t he part y seeking t o m odify t he order.” I d. ( quot ing Koch, 203 F.3d at 1222) . Adding t his dam age claim would prej udice Tenawa which has not had an opport unit y t o conduct discovery on t his dam age t heory. Tenawa says it has “ no idea” about when PSI did t his work, what num ber of hours 20 are involved, what work was exact ly done, who wit nessed t his work, and what am ount of dam ages are claim ed. The court finds t he am endm ent would seriously and unfairly prej udice Tenawa and require re- opening t he discovery t o involve pot ent ially several wit nesses. PSI ’s request t o am end t he pret rial order is denied. Tenawa’s m ot ion for sum m ary j udgm ent on PSI ’s UEQM claim is grant ed. PSI ’S M OTI ON FOR PARTI AL SUM M ARY JUD GM EN T ON CON TRACTS ( ECF# 1 0 3 ) a n d TEN AW A’S M OTI ON FOR PARTI AL SUM M ARY JUD GM EN T TO EN FORCE PLAI N TI FF’S PUBLI SH ED PRI CE LI ST ( ECF# 1 1 0 ) a n d TEN AW A’S M OTI ON TO STRI KE TH E AUGUST 2 O1 4 PRI CE LI ST, FOR LEAVE TO FI LE SUR- REPLY, FOR ATTORN EYS’ FEES AN D FOR OTH ER RELI EF D UE TO PSI ’S UN TI M ELY PROD UCTI ON OF PRI CE LI ST ( ECF# 1 3 0 ) Bot h sides seek sum m ary j udgm ent on what effect , if any, PSI ’s 2013 published price list has upon PSI ’s billing of services during t he Proj ect . PSI seeks sum m ary j udgm ent against Tenawa’s affirm at ive defense t hat PSI overcharged in using rat es higher t han t hose published in t he 2013 price list . PSI cont ends it s charges were consist ent wit h t he July 2014 updat ed cost est im at e which used it s current price rat es and was incorporat ed int o t he MSA “ under t he express t erm s of Exhibit I .” ECF# 104, p. 2. PSI asks for a part ial sum m ary j udgm ent finding, “ t hat t he rat es quot ed in 2013 were superseded by t he July 2014 quot e and t hat it s work was perform ed on a cost - plus basis governed by 2014 price rat es.” I d. I n it s sum m ary j udgm ent m ot ion, Tenawa asks t he court t o enforce PSI ’s 2013 published price list as t he MSA’s governing schedule of 21 rat es was never properly m odified, superseded, or replaced. PSI never gave proper writ t en not ice t o Tenawa of a rat e increase, and Tenawa never gave it s writ t en approval t o a rat e increase. Tenawa asks t he court t o apply t he 2013 price list and reduce PSI ’s claim ed dam ages by $244,096.16. Tenawa also m oves t o st rike PSI ’s published price list dat ed “ 81- 2014” t hat first appeared in t his case as an at t achm ent t o PSI ’s reply brief. ECF# 128- 3. Tenawa had been arguing for sum m ary j udgm ent in part on t he fact t hat PSI ’s 2013 price list was t he only rat e schedule exchanged bet ween t he part ies, was t he only rat e schedule found in t he court ’s record, and so, was t he only rat e schedule t hat governed t he part ies’ cont ract . Besides m oving t o st rike t his at t achm ent from PSI ’s reply brief, Tenawa asks for various relief due t o PSI ’s delayed present at ion of t his 2014 price list . The following fact s are part icularly relevant t o t he issues argued in t hese t hree m ot ions. On Decem ber 7, 2013, at Mr. Am eringer’s request for Tenawa, Mr. Bergeron for PSI sent a cover let t er which referred t o “ t he original price of $4,760,000 dat ed Sept em ber 13, 2013 . . . [ as being] a prelim inary budget ary quot e based on t he inform at ion provided by Tenawa and work perform ed on sim ilar proj ect s.” ECF# 101- 1, p. 8. This let t er also said, t hat PSI ’s work would be “ based on a cost - plus basis” and “ at t ached a price list .” I d. This at t achm ent was ent it led PSI ’s “ published price list ,” and it bore t he dat e of “ 2- 1- 13.” I d. at p. 9. 22 On Decem ber 13, 2013, Mr. Am eringer included PSI ’s cover let t er, budget ary quot e and t he 2013 price list wit h t he MSA and purchase order which he signed and em ailed t o PSI . This purchase order, No. HAV121313- 002, st at ed a price of $4.76 m illion, and it described PSI ’s work as “ Cost Plus Proposal for Haven I nst rum ent at ion and Elect rical Engineering per Panel Specialist Cover Let t er and Earlier Budget ary Est im at e dat e 12/ 7/ 13.” ECF# 101- 1, p. 10. Mr. Bergeron signed t he MSA for PSI on Decem ber 13, 2013. This purchase order provided as it s “ Term s” t he following, “ Per Periodic Billings based on equipm ent / supplies purchased and m anpower hours.” ECF# 104- 1, p. 11. I n her deposit ion, Mrs. Bergeron init ially said t he 2013 published price list governed PSI ’s charges on t he Tenawa proj ect , ECF# 111- 3, p. 5, but lat er described it as “ a st andard published price list . I t ’s not writ t en in st one,” I d. at p. 8. I n his deposit ion, when asked about t he m et hod and t im e of paym ent provisions in t he MSA, Mr. Bergeron t est ified t hat PSI ’s 2013 published price list was t he rat e sheet “ in force” when it was provided. ECF# 111- 2, p. 15. He also t est ified t hat he was not aware of any “ succeeding rat e sheet approved in writ ing by Tenawa.” I d. As for whet her t his price list was followed on t he Tenawa proj ect , Mr. Bergeron t est ified, “ som ewhat ,” explaining t hat , “ [ s] om e t hings we t ried t o follow as m uch as we possibly could, but not everyt hing. There were cert ain t hings and cert ain inst ances t hat were handled on a case- by- case basis.” I d. at p. 4. As for t elling 23 Tenawa of t hese deviat ions, Mr. Bergeron t est ified t hat ot her t han in t he invoices, PSI did not t ell Tenawa t hat t he charges were deviat ions, and Tenawa did not ask about t hem . I d. at p. 5. On July 3, 2014, Mr. Am eringer em ailed Mr. Bergeron, “ Per our conversat ion, at t ached is t he I nit ial Cost Est im at e t o be updat ed. Thanks and Have a Great 4t h.” ECF# 104- 1, p. 12. The em ail describes t he at t achm ent as, “ Panel I C Est - 9- 19- 12.pdf.” I d. Mr. Bergeron responded by em ail t wo weeks lat er, t he m orning of July 17, 2014, wit h, “ Please review t he at t ached updat e and call m e if you have any quest ions.” I d. The em ail describes t his at t achm ent as, “ Panel_Scope_Haven_est im at e _33.xis.” I d. at pp. 12- 13. The at t achm ent is a single page cont aining t en separat e general j ob descript ions wit h a corresponding updat ed est im at e. PSI ’s panel scope est im at e in July of 2014 was “ 6,685,000” exceeding t he Decem ber 2013 est im at e by over $1.9 m illion. I d. at p. 14. The est im at e does not disclose t he est im at ed num ber of hours or t he governing hourly rat es and equipm ent prices for t he t en list ed j obs com prising t he Proj ect . On t he aft ernoon of July 17, 2014, Mr. Am eringer replied, “ Looks good. See you next week.” I d. at p. 13. The part ies did not issue a new purchase order from t his updat ed est im at e. PSI ’s work at t he Plant sit e did not begin unt il lat er in July. Prior t o t his updat ed est im at e, PSI had subm it t ed at least nine invoices for labor and t ravel. This est im at e updat e did not include PSI ’s work done on t he I nt erconnect Facilit y. 24 Mr. Bergeron avers t hat t he July 2014 est im at e “ was based on t hen exist ing prices for labor, m at erials and equipm ent ,” t hat t he 2013 published price list “ was not in force in July of 2014,” and t hat t he “ July 2014 est im at e was an updat e t o t he Decem ber 2013 scope of work and superseded all prior pricing.” ECF# 104- 1, pp. 2- 3. I n cont rast , Mr. Am eringer avers t hat , “ [ a] t no t im e prior t o t he filing of t his lawsuit was Tenawa advised by anyone at PSI ( i) t hat PSI ’s Published Price was no longer in effect wit h respect t o t he Tenawa proj ect ; ( ii) t hat PSI had issued a new price list ; or ( iii) t hat PSI ot herwise increased it s rat es from t he Published Price List .” ECF# 121- 3, p. 4. Mr. Am eringer also not es he “ did not agree t o any am endm ent of t he MSA or replacem ent or subst it ut ion of PSI ’s Published Price List or t he rat es included t herein, because PSI never conveyed t o m e t hat it s hourly rat es had changed or were changing at any point before or during t he Proj ect .” ECF# 121- 3, p. 5. Mr. Am eringer also avers: 12. PSI and Tenawa never am ended t he MSA in writ ing signed by bot h part ies in order t o am end and/ or rem ove t he cont ract ual t erm s of t he MSA, Purchase Order, Budget ary Est im at e Let t er, or Published Price List . 13. PSI never, eit her orally or in writ ing, provided Tenawa wit h t hirt y ( 30) days’ not ice of a proposed rat e change in excess of or different t han t he rat es ident ified in t he Published Price List , and also never sought or received Tenawa’s writ t en approval t o any rat e change during t he proj ect . ECF# 111- 1, p. 3. 25 The MSA also provides t hat a Cont ract or is t o subm it invoices for work done det ailing “ t he rat es applicable t o each it em in accordance wit h t he schedule of rat es furnished by Cont ract or.” ECF# 104- 1, p. 18. PSI posit s t hat it s delivery t icket s com plied insofar as t he labor rat es, per diem s and lodging cost s were plainly disclosed and t hat Tenawa reviewed and approved t hem . On behalf of PSI , Mr. Bergeron avers t hat PSI furnished delivery t icket s “ for all labor and services provided” which clearly set out t he labor rat es and per diem s and t hat no Tenawa represent at ive prior t o t his lawsuit not ified PSI of a disagreem ent wit h t he per diem and labor rat es disclosed in t he delivery t icket s and invoices. ECF# 118- 1, ¶¶ 17, 18 and 24. Mr. Bergeron furt her avers t hat in August of 2015 w hen Mr. Am eringer m et wit h him about Tenawa’s failure t o pay every PSI invoice, Tenawa’s non- paym ent not ice did not cont est t he rat es t hat PSI charged for labor rat e or per diem s even t hough t hey were based on PSI ’s July 2014 est im at e and rat es. Tenawa reads t he MSA as not requiring it s im m ediat e obj ect ion t o delivery t icket s and invoices prior t o paym ent , but as reserving Tenawa’s right t o conduct a t im ely audit of paid invoices. Paragraph 11 of t he MSA provides, in pert inent part : I f Com pany com pensat es Cont ract or for work or services perform ed on a “ cost plus” . . . basis, . . ., Cont ract or shall m aint ain adequat e books and records sat isfact ory t o Com pany in connect ion t herewit h and ret ain sam e for t w o ( 2) years from and aft er t he year of com plet ion of such work or services for t he purpose of allowing Com pany t o verify t he accuracy of invoices present ed by Cont ract or hereunder. Upon com plet ion of t he audit , Cont ract or shall refund t o Com pany t he 26 am ount by which t he t ot al paym ent s t o Cont ract or exceeded t he act ual paym ent s due as est ablished by t he audit . ECF# 104- 1, p. 21. PSI reads t his provision as not giving Tenawa t he right t o audit “ delivery t icket s for agreed labor, m at erials and charges” but only t o “ verify[ . . .] t hat t he PSI I nvoices m at ch t he approved Delivery Ticket s.” ECF# 128, pp. 5- 6. PSI argues t hat it s delivery t icket s as “ approved const it ut es an offer and accept ance by Tenawa of t he labor, m at erials and ot her charges list ed by PSI .” I d. at 6. Tenawa offers t he t est im ony of it s Plant Manager, Bill Parkhurst , who reviewed PSI ’s Delivery Ticket s and invoices at Mr. Am eringer’s request . Mr. Parkhust t est ified he did not know of any agreem ent over hourly rat es and had not seen PSI ’s published price list . Finally, Tenawa denies t hat any represent at ive’s signat ure showing receipt of a t icket or invoice const it ut es an agreem ent t o change t he rat e schedule. Brad Misley, Vice President of Operat ions at Tenawa, avers, “ I t was not unt il Tenawa was analyzing PSI ’s invoices during discovery in t his case t hat Tenawa even realized t hat PSI increased t he hourly rat es for t he j ob t it les of PLC Program m er and PLC Technician in t he m iddle of t he Proj ect .” ECF# 121- 5, p. 3. Concerning PSI ’s failure t o produce t he 2014 price list during discovery, t he following relevant fact s are uncont rovert ed: 17. I n Request s No. 10 from Tenawa’s First Request s for Product ion of Docem ent s t o PSI , Tenawa specifically request ed t hat PSI produce all bids, price list s, est im at es, cost s of com plet ion, quot es for work, 27 purchase orders, and support ing docum ent at ion creat ed by PSI which relat e in any way t o t he design, const ruct ion, operat ion, m aint enance, and / or repair of t he Plant . . . . 18. I n it s Response t o Tenawa’s First Request for Product ion of Docum ent s, PSI obj ect ed t hat it did not design, operat e, m aint ain, or repair t he Plaint and inst ead only const ruct ed it , but t hen st at ed t hat it would produce t he request ed docum ent at ion relat ed t o it s scope of work in response t o Request No. 10. . . . 19. To dat e ( during t he Proj ect , discovery in t his case, and sum m ary j udgm ent briefing) , PSI has failed t o produce or ot herwise provide t o Tenawa an updat ed or revised Published Price List or any ot her docum ent at ion showing it s allegedly updat ed and increased hourly rat es for 2014 or 2015, despit e t he fact t hat t his docum ent at ion is direct ly responsive t o Request No. 10 above, along wit h Request Nos. 12, 14, 17, 26, 36, and 38 from Tenawa’s First Request for Product ion of Docum ent s, t o nam e a few ot hers. ECF# 121, pp. 13- 14. As t o ¶ 19, PSI has added t hat it s “ counsel was under t he im pression t hat t he 2014 Price List had been produced wit hin PSI ’s supplem ent product ion” and t hat PSI ’s 2014 Price List was now at t ached as Exhibit 3. ECF# 128, p. 7. PSI ’s at t achm ent of t he 2014 Price List as Exhibit 3 t riggered Tenawa’s m ot ion t o st rike ( ECF# 130) which t he court t akes up first . Tenawa’s Mot ion t o St rike 2014 Price List and For Ot her Relief Tenawa asks t he court t o st rike t he 2014 price list from t he sum m ary j udgm ent record, t o grant it leave t o file a sur- reply, t o order PSI t o pay it s at t orneys’ fees for filing t his m ot ion and t he sur- reply, t o inst ruct t he j ury at t rial t hat PSI did not produce t his 2014 price list unt il now, and t o preclude PSI from discussing inform at ion relat ed t o t he 2014 price list except for what is st at ed on it s face. I n lieu of t he lat t er t wo request s, 28 Tenawa asks t he court t o preclude PSI from referencing or int roducing t he 2014 price list at t rial. “ I f a part y fails t o provide inform at ion . . . as required by Rule 26( a) or ( e) , t he part y is not allowed t o use t hat inform at ion . . . t o supply evidence on a m ot ion, at a hearing, or at a t rial, unless t he failure was subst ant ially j ust ified or is harm less.” Fed. R. Civ. P. 37( c) ( 1) . The Tent h Circuit has recognized: “ The det erm inat ion of whet her a Rule 26( a) violat ion is j ust ified or harm less is ent rust ed t o t he broad discret ion of t he dist rict court .” Mid–Am erica Tablewares, I nc. v. Mogi Trading Co., 100 F.3d 1353, 1363 ( 7t h Cir.1996) . A dist rict court need not m ake explicit findings concerning t he exist ence of a subst ant ial j ust ificat ion or t he harm lessness of a failure t o disclose. Unit ed St at es v. $9,041,598.68, 163 F.3d 238, 252 ( 5t h Cir.1998) . Nevert heless, t he following fact ors should guide it s discret ion: ( 1) t he prej udice or surprise t o t he part y against whom t he t est im ony is offered; ( 2) t he abilit y of t he part y t o cure t he prej udice; ( 3) t he ext ent t o which int roducing such t est im ony would disrupt t he t rial; and ( 4) t he m oving part y's bad fait h or willfulness. See Newm an v. GHS Ost eopat hic I nc., 60 F.3d 153 ( 3d Cir.1995) ( quot ing Bronk v. I neichen, 54 F.3d 425, 428 ( 7t h Cir.1995) ) ; Cf. $9,041,598.68, 163 F.3d at 252 ( enum erat ing a sim ilar list of fact ors t o det erm ine whet her inclusion of last - m inut e evidence is harm less) ; Sm it h v. Ford Mot or Co., 626 F.2d 784, 797 ( 10t h Cir.1980) ( applying t hese four fact ors t o det erm ine whet her t he dist rict court abused it s discret ion in allowing t est im ony not specified in t he pret rial order) . Woodworker's Supply, I nc. v. Principal Mut . Life I ns. Co., 170 F.3d 985, 993 ( 10t h Cir. 1999) . “ [ A] lt hough a dist rict court need not m echanically recit e t he t erm s ‘subst ant ial j ust ificat ion’ or ‘harm lessness,’ t he dist rict court ’s ult im at e reasoning should reveal considerat ion of t he Woodworker’s crit eria.” 29 HCG Plat inum , LLC v Preferred Product Placem ent Corporat ion, 873 F.3d 1191, 1201 ( 10t h Cir. 2017) ( cit at ion om it t ed) . While adm it t ing it never produced t he August 2014 price list during discovery, PSI argues subst ant ial j ust ificat ion from having never cont ended “ t hat t he August 2014 Price List was ever provided t o Tenawa during t he Proj ect or was t h e price list used for all of t he work on t his Plant .” ECF# 132, p. 6. This argum ent , however, does not warrant a narrow reading of Tenawa’s broad discovery request for, “ bids, price list s, est im at es, . . . purchase orders, and support ing docum ent at ion creat ed by PSI which relat e in any way t o t he . . . const ruct ion . . . of Plant .” ECF# 121- 4, p. 5. PSI ’s 2014 price list squarely falls wit hin t he plain t erm s of Tenawa’s discovery request . PSI creat ed t he 2014 price list . I nsofar as t he list eit her represent s or is linked t o t he rat es t hat PSI charged on t he Proj ect , t hen it is “ relat ed” t o t he Plant ’s const ruct ion. I ndeed, PSI ’s sum m ary j udgm ent posit ion is t hat it used t he “ current ” 2014 rat es t o bill Tenawa. The court finds t hat PSI ’s 2014 published price list falls wit hin t he plain t erm s of Tenawa’s discovery request and was subj ect t o t im ely supplem ent at ion. The 2014 price list cert ainly bears on t he sum m ary j udgm ent decision whet her PSI ’s 2013 schedule or it s 2014 rat es govern. PSI cont ends t he 2013 published price list was superseded by PSI ’s July 2014 updat ed est im at e. ECF# 118, p. 3, ¶ 15. And, PSI explains t hat it s July 2014 est im at e “ was based on PSI ’s 2 0 1 4 r a t e s, not t he rat es in t he 2013 30 Published Price List .” ECF# 118, p. 16 ( bolding added) . This necessarily t riggers considerat ion of any docum ent ary evidence proving or disproving t hat PSI ’s price list in 2014 was higher. While PSI can prove it s 2014 rat es were higher wit hout an act ual published price list , Tenawa cert ainly is j ust ified in seeking all evidence on what PSI ’s “ 2014 rat es” were in July 2014 and on how PSI m aint ained and docum ent ed t hese higher rat es. PSI ’s focus on it s delivery t icket s and invoices does not dim inish Tenawa’s reasonable request t o look for ot her evidence. PSI ’s explanat ion t hat it m ist akenly believed t he 2014 price list had been produced is not subst ant ial j ust ificat ion. PSI adm it s t he issue of price list s was t he “ subj ect of discussion” in Decem ber of 2017 during t he form ulat ion of t he pret rial order. ECF# 132, p. 7. Though t he court has not been given cause for quest ioning PSI ’s good fait h, t here is cert ainly a lack of diligence on PSI ’s part in not supplem ent ing discovery prom pt ly aft er receiving Tenawa’s sum m ary j udgm ent argum ent s. I t is t roubling t hat PSI wait ed over t hree weeks and produced t he price list on t he sam e day it filed t he final reply brief in t he sum m ary j udgm ent proceedings. ( ECF# 128) . Prej udice t o Tenawa com es from not conduct ing discovery on t he 2014 price list and from m issing out on t he chance t o address t his evidence in t he sum m ary j udgm ent proceedings. PSI denies prej udice t o Tenawa saying it should have expect ed PSI ’s annual rat e changes and conduct ed discovery on t he sam e. Tenawa’s product ion request , however, was a 31 reasonable at t em pt at t his very discovery. Wit h discovery and sum m ary j udgm ent briefing effect ively closed, curing t his prej udice is com plicat ed. Tenawa right ly argues prej udice from being denied t im ely discovery on t his docum ent including a forensic exam inat ion of m et adat a. The prej udice t o t he sum m ary j udgm ent proceedings is not relieved by now reopening discovery. The court grant s Tenawa’s m ot ion t o st rike t he 2014 published price list from t he sum m ary j udgm ent record and grant s it s request for reasonable at t orneys’ fees for briefing it s m ot ion t o st rike. The court post pones t he calculat ion and award of t hese fees t o t he close of t his lit igat ion. Upon t he st riking of t his sum m ary j udgm ent exhibit , Tenawa accept s t hat it s m ot ion for leave t o file sur- reply is m oot . ECF# 133, pp. 2- 3. The court reserves for t he t rial j udge’s ruling Tenawa’s ot her request s concerning t he 2014 published price list ’s adm issibilit y and/ or rest rict ions of relat ed evidence. Sum m ary Judgm ent Mot ions As laid out above, bot h sides seek sum m ary j udgm ent as t o t he purpose, force, and effect of PSI ’s 2013 published price list t hat accom panied t he MSA. The following general law governs t he court ’s analysis. At ¶ 19, t he MSA provides t hat t he part ies’ “ right s and obligat ions” under it “ shall be const rued and governed in accordance wit h” Texas law. ECF# 104- 1, p. 22. “ I f t he writ t en inst rum ent is so worded t hat it can be given a cert ain or definit e legal m eaning or int erpret at ion, t hen it is not 32 am biguous and t he court will const rue t he cont ract as a m at t er of law.” Coker v. Coker, 650 S.W.2d 391, 393 ( Tex. 1983) . Not unlike t he laws of ot her st at es, Texas law provides: Whet her a cont ract is am biguous is a quest ion of law t hat m ust be decided by exam ining t he cont ract as a whole in light of t he circum st ances present when t he cont ract was ent ered. Nat ional Union Fire I ns. Co. v. CBI I ndust ries, I nc., 907 S.W.2d 517, 520 ( Tex.1995) ; Coker v. Coker, 650 S.W.2d 391, 394 ( Tex.1983) . A cont ract is not am biguous if it can be given a definit e or cert ain m eaning as a m at t er of law. CBI , 907 S.W.2d at 520; Coker, 650 S.W.2d at 393; Universal C.I .T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 ( 1951) . On t he ot her hand, if t he cont ract is subj ect t o t wo or m ore reasonable int erpret at ions aft er applying t he pert inent rules of const ruct ion, t he cont ract is am biguous, which creat es a fact issue on t he part ies' int ent . Daniel, 243 S.W.2d at 157; see also generally CBI , 907 S.W.2d at 520. An am biguit y does not arise sim ply because t he part ies advance conflict ing int erpret at ions of t he cont ract . Forbau v. Aet na Life I ns. Co., 876 S.W.2d 132, 134 ( Tex.1994) ; Sun Oil Co. ( Delaware) v. Madeley, 626 S.W.2d 726, 727 ( Tex.1981) . For an am biguit y t o exist , bot h int erpret at ions m ust be reasonable. See CBI , 907 S.W.2d at 520; see also Glover v. Nat ional I ns. Underwrit ers, 545 S.W.2d 755, 761 ( Tex.1977) . I n t his case, we m ust decide whet her t here is m ore t han one reasonable int erpret at ion of t his cont ract such t hat a fact issue was creat ed concerning t he part ies' int ent . Colum bia Gas Transm ission Corp. v. New Ulm Gas, Lt d., 940 S.W.2d 587, 589 ( Tex. 1996) . Neit her side argues am biguit y but cert aint y in t he MSA’s t erm s on which t hey respect ively rely. Tenawa argues for sum m ary j udgm ent t hat t he PSI ’s 2013 published price list is t he agreed rat e schedule under t he MSA and t hat t his rat e schedule should cont rol t he applicable charges by PSI t hroughout t he Proj ect absent a schedule change approved pursuant t o t he MSA. The original purchase order incorporat es t he budget ary est im at e, and t he 33 budget ary est im at e references and at t aches t he 2013 price list . Mr. Am eringer avers t hat he asked PSI in July of 2014 for an updat ed est im at e so t hat he would have t he m ost current est im at es for upcom ing m eet ings over t he lat est developm ent s wit h t he Proj ect . Mr. Am eringer denies t hat his request for an updat e included or m ent ioned any am endm ent , supplem ent at ion, subst it ut ion, or superseding replacem ent of any cont ract ual t erm concerning t he MSA. He furt her denies t hat his reply, “ looks good” t o PSI ’s 2014 est im at e, was int ended or underst ood t o be an agreem ent t o replace or subst it ut e PSI ’s 2013 schedule of rat es. Because it never received nor discussed a PSI 2014 price list , Tenawa cont ends no such list could becom e operat ive under t he MSA’s t erm s. Finally, Tenawa says it did not realize t hat PSI ’s rat es had increased unt il it analyzed PSI ’s invoices during discovery in t his case. There is not hing of record showing t hat PSI at t em pt ed t o follow t he MSA in am ending or replacing a schedule of rat es. As an affirm at ive defense, Tenawa alleges PSI breached t he MSA in billing PSI ’s labor and per diem charges on t he Proj ect at rat es exceeding t he 2013 rat e schedule. I n arguing it s side in t hese sum m ary j udgm ent proceedings, PSI first want s t o narrow t he MSA’s cont ract ual force, as only cont em plat ing subsequent work orders and as deferring t o t he t erm s and prices of t hose lat er work orders. I n t hat vein, PSI want s t he court t o const rue t he MSA as t reat ing t he 2013 budget ary est im at e and accom panying 2013 Published 34 Price List as no m ore t han a prelim inary bid under Exhibit I superseded by PSI ’s updat ed July 2014 bid t hat was based on it s 2014 rat es. PSI would have t he court int erpret t he July 2014 updat ed est im at e as supplem ent ing t he MSA because t he updat ed est im at e cam e at Tenawa’s request and served as t he cost plus basis for t he rat es charged. PSI believes Exhibit I com pels t he sam e result in providing t hat , “ if a part icular work order is bid, t he bid price will becom e t he basis for Cont ract or’s com pensat ion.” ECF# 104- 1, p. 30. PSI also asks t he court t o int erpret t he Decem ber 2013 purchase order as being no m ore t han a prelim inary purchase order and as having no express rat e schedule. PSI challenges t hat Mr. Am eringer’s t est im ony on his underst anding of t he 2013 published price list is subj ect t o a credibilit y at t ack in t hat he asked for and approved PSI ’s 2014 updat ed est im at e and he also reviewed and approved PSI ’s delivery t icket s and invoices. PSI posit s t hat it s disclosure of higher rat es in t he delivery t icket s const it ut ed writ t en not ice t hat it would be invoicing for t hose rat es and t hat Tenawa was obligat ed t o obj ect at t hat point . PSI alt ernat ively argues t hat t he present at ion, processing and paym ent of t hese delivery t icket s and invoices const it ut es offer and accept ance of a “ subsequent , superseding agreem ent on rat es.” ECF# 118, p. 22. Finally, PSI argues against Tenawa’s m ot ion assert ing waiver and est oppel based on Tenawa’s review of t he delivery t icket s, approval and paym ent of t he invoices, and Oct ober 2015 paym ent of PSI invoices. 35 Aft er carefully reviewing t he deposit ions and affidavit s of t he key represent at ives for bot h PSI and Tenawa, t he court is left wit h t he im pression t hat genuine issues of m at erial fact preclude sum m ary j udgm ent for bot h sides. None of t he docum ent s prepared and signed in Decem ber of 2013 specifically refer t o PSI ’s 2013 published price list as a “ schedule of rat es.” And while t he Bergerons’ t est im ony cert ainly support s a finding t hat t hey believed t he price list w as cont rolling when t he MSA was execut ed, t here is a quest ion of m at erial fact over whet her t here w as an agreem ent t hat t his published price list would const it ut e a schedule of rat es for t he life of t he Proj ect . The part ies’ perform ance under t he MSA does not definit ively point t o a shared underst anding about t he int ended purpose and effect of t he 2013 published price list . There is no direct evidence from 2013 or 2014 t hat t hey discussed and reached an underst anding about t his published price list const it ut ing a schedule of rat es binding under t he MSA and subj ect t o it s Sect ion Six provisions on Met hod and Tim e of Paym ent . At best , t here are only arguable and com pet ing inferences t o be drawn from t he t icket ing, invoicing, reviewing and approving of t icket s wit hout obj ect ion, and audit ing right s under t he MSA. The part ies’ purchase order in Decem ber of 2013 m erely grouped t oget her all of PSI ’s 2013 subm issions, including t he price list , and referred t o t hem as t he, “ Earlier Budget ary Est im at e dat ed 12/ 7/ 13.” ECF# 104- 1, p. 10. And before PSI began it s act ual const ruct ion work on t he 36 Proj ect sit e, Tenawa request ed from PSI an updat ed est im at e in July of 2014. PSI provided t he updat ed est im at e t hat increased t he t ot al cost of it s work by m ore t han 40% . Tenawa sim ply responded, “ looks good.” The part ies’ conduct does not reveal m uch of a shared underst anding about t he purpose and effect of t hese “ est im at es” and t he docum ent s subm it t ed in support of t hem . The sides differ on whet her PSI ’s original or updat ed subm ission is cont rolling, but t hey call bot h “ est im at es.” Tenawa would have t he original est im at e be a “ schedule,” and PSI would have bot h est im at es be no m ore t han “ bids.” Because t he MSA does not specifically address “ est im at es,” because t he part ies genuinely disput e how t heir dealings were int ended t o be covered by t he MSA, and because t here are credibilit y issues raised as t o t he part ies’ t est im ony and affidavit s on t his issue, t he court denies sum m ary j udgm ent for bot h sides. TEN EW A’S M OTI ON FOR PARTI AL SUM M ARY JUD GM EN T ON PLAI N TI FF’S M ECH AN I C’S LI EN CLAI M ( ECF # 1 0 6 ) . I n t he pret rial order, PSI list s four legal claim s, t he last of which is: “ Mechanics’ Lien: PSI is also ent it led t o recovery on it s m echanics lien filed in Reno Count y, KS on Novem ber 5, 2015.” ECF# 95, p. 12. Tenawa includes in t he pret rial order t he following defense t o t his claim : “ PSI ’s claim relat ed t o t he m echanic’s lien it filed is unt im ely and barred by t he st at ut e of lim it at ions because t he lien expired one year aft er it was filed pursuant t o K.S.A. § 60- 1105( a) .” I d. at p. 13. The Kansas st at ut e provides: 37 ( a) Lim it at ions. An act ion t o foreclose a lien under t his art icle shall be brought wit hin one year from t he t im e of filing t he lien st at em ent , but if a prom issory not e has been at t ached t o t he lien st at em ent in lieu of an it em ized st at em ent , t he act ion shall be com m enced wit hin one year from t he m at urit y of said not e. K.S.A. 60- 1105( a) . The quest ion t hen is whet her PSI ’s m echanic’s lien claim is barred by t his st at ut e. PSI filed it s m echanic’s liens in Sept em ber and Novem ber of 2015 in Reno Count y, Kansas. PSI at t ached no prom issory not es t o t he liens. When PSI originally filed t his case on Decem ber 18, 2015, in t he Unit ed St at es Dist rict Court for t he East ern Dist rict of Louisiana, it included no count seeking t o foreclose on t hese m echanic’s liens. ECF# 1. PSI ’s am ended com plaint filed t wo weeks lat er also lacked a claim t o foreclose on t he m echanic’s lien. ECF# 5. Neit her com plaint even m ent ions t he m echanic’s liens. This case was t hen t ransferred t o t he Dist rict of Kansas in August of 2016. I n t he draft ing of t he pret rial order in January of 2018, PSI added t he legal claim quot ed above for recovery on it s m echanic’s lien. PSI has not filed a separat e act ion seeking foreclosure of t he m echanic’s lien. PSI adds t hat when Tenawa argued for t ransfer from Louisiana t o Kansas it m ent ioned PSI ’s m echanic’s liens and t he requirem ent upon PSI t o foreclose t hese liens in Reno Count y, Kansas. ECF# 7- 1, p. 6. PSI also point s t o t he corresponding am ount s of loss alleged in it s filed liens and in it s filed court claim s for recovery. PSI also highlight s t hat it ident ified t he m echanic’s lien as a support ing docum ent in discovery. 38 Tenawa argues PSI ’s m echanic’s lien is unenforceable, because PSI failed t o file a lawsuit seeking foreclosure of it s m echanic’s lien wit hin one year of filing t he lien st at em ent . The Kansas Suprem e Court has said t hat Kansas “ lien st at ut es [ § 1105( a) ] have a specific period for enforcem ent .” Boyce v. Knudson, 219 Kan. 357, 362, 548 P.2d 712 ( 1976) . “ When liens are not t im ely perfect ed pursuant t o K.S.A. 60- 1105( a) , K.S.A. 60- 1108 provides a st at ut ory rem edy.” I d. Nam ely, “ [ i] f no act ion t o foreclose or adj udicat e any lien filed under t he provisions of t his art icle shall be inst it ut ed wit hin t he t im e provided in subsect ion ( a) of K.S.A. 60- 1105, . . ., t he lien shall be considered canceled by lim it at ion of law.” K.S.A. 601108. I n Boyce, t he Kansas Suprem e Court em phasized t he following: I n const ruing t he m echanics' lien st at ut es in Sut herland Lum ber Co. v. Due, 212 Kan. 658, 512 P.2d 525, t he court held m echanics' liens are st at ut ory in origin and one who claim s t he benefit of such a lien has t he burden of bringing him self wit hin t he purview of t he st at ut es which creat e t hem . Our prior m echanics' lien st at ut es have been so const rued. ( See, G.S.1949, 60- 1405; L. 1909, ch. 182, s 653; May 29; R.S.1923, s 60- 1405.) I n Clark Lum ber Co. v. Passig, 184 Kan. 667, 339 P.2d 280, t he court st at ed: ‘Equit able considerat ions do not ordinarily give rise t o a m echanic's lien. ( For an except ion see t he recent case of Adair v. Transcont inent al Oil Co., 184 Kan. 454, 338 P.2d 79.) Being creat ed by st at ut e, a m echanic's lien can only arise under t he circum st ances and in t he m anner prescribed by t he st at ut e. I t has been said a lien claim ant m ust secure a lien under t he st at ut e or not at all. Doane v. Bever, 63 Kan. 458, 65 P. 693 . . .’ ( p. 673, 339 P.2d p. 285.) I n Bell v. Hernandez, 139 Kan. 216, 30 P.2d 1101, t he court st at ed: ‘Mechanics' liens, right s acquired under t hem , and procedure t o obt ain such right s, were unknown t o t he com m on law. . . . They are conferred by st at ut e alone, and one who obt ains t he benefit of t he st at ut e m ust be wit hin t he purview of t he st at ut e and 39 pursue his rem edy in t he m anner and wit hin t he t im e prescribed by st at ut e. . . . ‘. . . ‘A m echanic's lien not foreclosed wit hin t he t im e allowed by st at ut e, is no longer an enforceable lien.’ Mont gom ery Count y Nat . Bank v. Backus, 108 Kan. 779, 196 Pac. 1074.' ( pp. 218, 219, 30 P.2d pp. 1102, 1103.) ( Em phasis added.) We t hink t he conclusion is inescapable t hat t he liens filed by t he appellant s herein lost t heir force by failure of t he appellant s t o foreclose t hem wit hin one year from t he t im e of filing. 219 Kan. at 362. Under Boyce, it falls t o PSI in seeking t he benefit s of t his st at ut ory rem edy t o bear t he burden of sat isfying t he st at ut ory requirem ent s, which include foreclosing on t he lien wit hin t he one- year period, or t he lien will not be enforceable. PSI asks t hat it s current lawsuit be t reat ed as an act ion seeking t o enforce it s m echanic lien. PSI argues “ t he part ies have always t reat ed t he Lawsuit as a m eans by which t o adj udicat e t he am ount s owing or pot ent ially owing t o PSI as described in t he St at em ent of Lien filed in Reno Count y, Kansas.” ECF# 116, p. 3. PSI not es t hat Tenawa realized from t he beginning of t he suit t hat PSI ’s filed lien corresponded in am ount t o t he dam ages sought in it s com plaint s and t hat Tenawa knew PSI ’s lien exist ed for it s prot ect ion. PSI does not com e forward wit h any aut horit y for holding t hat t his st at ut ory requirem ent of filing an act ion can be sat isfied on t he equit able considerat ion t hat t he defendant should have known. As t he Kansas Suprem e Court said in Boyce, equit able considerat ions do “ not t oll t he one- year st at ut e of lim it at ions for foreclosure of m echanics’ liens.” 219 Kan. at 363 ( cit ing Bell v. Hernandez) . 40 PSI furt her argues t hat it s original and am ended com plaint s are enough on t heir own because, “ [ u] nder K.S.A. 60- 1105( a) , t he lienholder m ust sim ply t ake som e affirm at ive act ion on it s own behalf t o foreclose it s lien. See Colum bia Sav. Ass’n, F.A. v. McPheet ers, 21 Kan. App. 2d 919, 923, 911 P.2d 187, 191 ( 1996) .” The court , however, concludes t hat PSI ’s com plaint and am ended com plaint never affirm at ively assert ed a right t o have it s lien adj udicat ed or foreclosed upon. See, e.g., Diehl v. Lum ber Transp. I nc. v. Mickelson, 802 P.2d 739, 743 ( Ut ah Ct . App. 1990) ( while defendant answered and count erclaim ed t hat it had not been paid, it “ did not seek nor claim a right t o foreclosure of any lien” unt il it s am ended count erclaim ) ; Miller v. T.A. & J.M. General Cont ract ors, I nc., 124 Misc. 2d 273, 274, 476 N.Y.S.2d 449 ( 1984) ( no act ion t o enforce lien was com m enced by filing a cont ract act ion seeking dam ages for unpaid balances wit hout m ent ioning t he lien) . As Tenawa not es, PSI did not affirm at ively allege and act on it s lien int erest unt il it assert ed t his m echanic’s lien claim in t he pret rial order over t wo years aft er filing it s lien. That t he am ount of t he liens filed in Reno Count y, Kansas, m at ch t he am ount of dam ages claim ed in t he lawsuit sim ply is not t he sam e as assert ing a lien int erest and affirm at ively asking for it t o be adj udicat ed. Relying again on t he com m on claim ed am ount of dam ages and on ot her non- pleading references t o t he m echanic’s lien, PSI advocat es for relat ion back using Rule 15’s analysis for an am ended pleading. The court 41 concludes relat ion back is unavailable t o PSI in t hese circum st ances. When PSI sought t o add t his m echanic’s lien claim t hrough t he pret rial order, t he lim it at ions period had already expired and, by st at ut e, t he lien had already been “ cancelled.” K.S.A. 60- 1108. Consequent ly, t here was no valid lien upon which t o bring an act ion. See Unit ed Pacific I ns. Co. v. Cot t onwood Propert ies, I nc., 156 Ariz. 149, 150, 750 P.2d 907, 908 ( 1987) ( relat ion back cannot revive an unt im ely st at ut ory lien foreclosure act ion) ; Diehl Lum ber Transp. I nc. v. Mickelson, 802 P.2d at 744 ( “ once t he t im e had expired, t he court lacked aut horit y t o revive t he lien by perm it t ing am endm ent under Rule 15,” ) ; Boyce, 219 Kan. 364 ( “ When t hose liens were not t im ely det erm ined, t hey were no longer enforceable . . . .” ) . Based on t he Kansas st at ut e and t he Kansas Suprem e Court ’s st rict reading of t his st at ut ory rem edy, t he court believes t he Kansas Suprem e Court would not allow a cancelled and unenforceable lien t o be revived by relat ion back. Even assum ing Kansas Suprem e Court would do ot herwise, t he court does not find relat ion back is j ust ified here. The t ransact ional circum st ances unique t o a m echanic’s lien act ion are t he requirem ent s for a perfect ed or t im ely det erm ined lien. PSI ’s com plaint s, however, never referred t o t he liens, never discussed t he occurrence of t heir filing, and never addressed t he ot her requirem ent s for a valid and enforceable lien. Tenawa is ent it led t o part ial sum m ary j udgm ent on PSI ’s m echanic’s lien claim . 42 TEN AW A’S M OTI ON FOR PARTI AL SUM M ARY JUD GM EN T ON PSI ’S CLAI M S FOR ATTORN EYS’ FEES AN D SUPER- I N TEREST ECF# 1 0 8 I n t he pret rial order, PSI does not include at t orneys’ fees and super- int erest as one of it s legal claim s. But under t he sect ional heading of, “ Dam ages and Non- Monet ary Relief Request ed,” PSI “ claim s ent it lem ent ” t o cert ain dam ages including, “ ( iv) At t orney’s fees and cost s, a s pr ovide d for in PSI ’s de live r y t ick e t s a n d in voice s; ( v) Penalt ies under applicable st at ut es . . . .” ECF# 95, p. 16 ( bolding added) . Tenawa seeks part ial sum m ary arguing PSI is not ent it led t o recover as t here was no agreem ent or accept ance of t hose provisions in t he delivery t icket s and invoices. I n em ailing it s t icket s and invoices, PSI failed t o em ail t he Term s and Condit ions page t hat included t he fees and super- int erest provision. Tenawa also argues PSI is not ent it led t o recover at t orney’s fees against a lim it ed liabilit y com pany like Tenawa under Texas law. I n response, PSI wit hdraws it s cont ract ual claim s for at t orneys’ fees and super- int erest based on t he Term s and Condit ions found on t he back of it s delivery t icket s. PSI , however, says it “ is st ill seeking it s at t orney’s fees and int erest pursuant t o Texas law,” and m aint ains it has a claim for fees and int erest claim under Texas law. ECF# 120, pp. 1- 2. PSI believes t his claim is included in t he pret rial order, because it has list ed “ penalt ies under applicable st at ut es” as one of it s dam age elem ent s and because Tenawa has set out defenses under Texas law t o fees and int erest . ( ECF# 95, p. 12, ¶ 4( b) ( iii) and p. 16, ¶ 5( a) ( v) . 43 I n reply, Tenawa explains it s m ot ion does not address PSI ’s st at ut ory claim for pre- j udgm ent int erest but only PSI ’s claim for superint erest which PSI has now wit hdrawn. Tenawa denies t hat PSI has assert ed in t he pret rial order any Texas st at ut ory claim for at t orney fees and t hat Texas case law forecloses recovery of fees against a lim it ed liabilit y com pany, like Tenawa. On it s face, t he pret rial order shows PSI ’s claim for at t orneys’ fees was exclusively cont ract ual in nat ure. PSI included no reference t o a st at ut ory basis for it s at t orney’s fees claim . The court cannot st ret ch t he vague reference t o “ penalt ies under applicable st at ut es” t o include a st at ut ory claim for reasonable at t orney’s fees part icularly when PSI chose t o affirm at ively assert a claim for at t orneys’ fee cit ing only a cont ract ual basis for recovery. Even if PSI had included a st at ut ory claim for fees, t his court would find t hat PSI cannot recover fees against Tenawa, a lim it ed liabilit y com pany, under § 38.001. The persuasive weight of j udicial opinions have int erpret ed t his st at ut e as not allowing t his recovery: Sect ion 38.001 of t he Texas Civil Pract ice and Rem edies Code aut horizes an award of at t orneys' fees for cert ain enum erat ed classes of claim s brought by a “ person” against “ an individual or corporat ion.” See Tex. Civ. Prac. & Rem . Code Ann. § 38.001 ( West 2015) ; Choice! [ Power, L.P. v. Feeley, No. 01- 15- 00821- CV] , 2016 WL 4151041, at * 8 [ ( Tex. App.—Houst on [ 1st Dist .] Aug. 4, 2016, no pet h.) ] . Under t he plain language of sect ion 38.001, a t rial court cannot order lim it ed liabilit y part nerships ( L.L.P.) , lim it ed liabilit y com panies ( L.L.C.) , or lim it ed part nerships ( L.P.) t o pay at t orneys' fees. See Choice! , 2016 WL 4151041, at * 11 ( sect ion 38.001 does not perm it recovery against 44 an L.P.) ; Alt a Mesa Holdings, L.P. v. I ves, 488 S.W.3d 438, 452–55 ( Tex. App.—Houst on [ 14t h Dist .] 2016, pet . denied) ( sect ion 38.001 does not perm it recovery against an L.L.C.) . The availabilit y of at t orneys' fees under a part icular st at ut e is a quest ion of law for t he court . See Flem ing & Assocs., L.L.P. v. Bart on, 425 S.W.3d 560, 574 ( Tex. App.—Houst on [ 1st Dist .] 2014, pet . denied) . Phonet ernet , LLC v. Drawbridge Design, 05- 17- 00890- CV, 2018 WL 3238001, at * 2 ( Tex. App.- - Dallas July 3, 2018) . While t hese decisions are st ill not t he final word on int erpret ing § 38.001, federal dist rict court s in Texas cert ainly have accorded t hem som e precedent ial weight : Texas law aut horizes a part y t o collect at t orneys' fees in som e t ypes of act ions—but only from an individual or a corporat ion. Tex. Civ. Prac. & Rem . Code § 38.001. Sect ion 38.001 does not aut horize a part y t o collect at t orneys' fees from a lim it ed liabilit y com pany. PEG Bandwidt h TX, LLC v. Texhom a Fiber, LLC, 299 F. Supp. 3d 836, 848 ( E.D. Tex. 2018) . Because St abilis is a lim it ed liabilit y com pany, Com pass cannot collect at t orneys' fees from St abilis. St abilis Fund I I , LLC v. Com pass Bank, 3: 18- CV- 283- B, 2018 WL 3617971, at * 3 ( N.D. Tex. July 30, 2018) ; Nerium SkinCare, I nc. v. Nerium I nt l., LLC, 3: 16- CV- 1217- B, 2018 WL 2323243, at * 6 ( N.D. Tex. Mar. 26, 2018) ( “ Every federal and st at e court t o consider t his issue, including at least four j udges in t his dist rict , has det erm ined t hat sect ion 38.001 does not apply t o unincorporat ed ent it ies.” ( cit at ions om it t ed) ) , report and recom m endat ion adopt ed, 3: 16- CV- 1217- B, 2018 WL 2323471 ( N.D. Tex. May 2, 2018) . The court agrees wit h Judge Mart en’s predict ion t hat t he Texas Suprem e would follow t hese lower court s in int erpret ing § 38.001 as not including an LLC: Where t he Texas Suprem e Court has not weighed in on an issue—and it has not in t his inst ance—t he court m ust predict how t hat court would rule. I t does so by considering all available resources, including 45 decisions by Texas and federal court s, any ot her relevant decisions, and t he general weight and t rend of aut horit y. Cornhusker Cas. Co. v. Skaj , 786 F.3d 842, 852 ( 10t h Cir. 2015) . The st at ut e at issue allows a person t o recover an at t orney’s fee “ from an individual or corporat ion.” Texas st at e and federal court s “ have narrowly const rued t his provision t o lim it recovery of at t orney’s fees t o individuals and corporat ions but not ot her legal ent it ies, such as lim it ed liabilit y com panies or part nerships.” J.D. Fields & Co., I nc. v. Nort h Am . Fabricat ors, LLC, 2016 WL 7912455, * 14 ( S.D. Tex. Nov. 7, 2016) . The only court s t o have squarely considered whet her t he provision allows an award of at t orney’s fees against an LLC or sim ilar ent it y have concluded t hat it does not . [ cit at ions om it t ed] . . . As indicat ed above, t he court s t hat have addressed t he issue have found t hat t he st at ut e does not perm it an award of at t orney fees t o an LLC. Given t he significant weight of aut horit y indicat ed above— and t he plain language of t he st at ut e—t he court m ust predict t hat t he Texas Suprem e Court would conclude t hat an LLC is not an “ individual or corporat ion” wit hin t he m eaning of § 38.001. Violet t a v. St even Brot hers Sport s Managem ent , LLC, 2017 WL 1197662, at * 2- * 3 ( D. Kan. Mar. 31, 2017) . Finally, PSI asks t he court t o det erm ine whet her Tenawa can be a “ person” under § 38.001 and seek at t orney’s fees when it is not an “ individual or corpor at ion” under t he sam e st at ut e. PSI is not ent it led t o a decision on t his issue, as it has not filed a m ot ion seeking disposit ive relief against Tenawa’s at t orneys’ fees claim . The court , t herefore, grant s Tenawa’s m ot ion for part ial sum m ary j udgm ent on PSI ’s claim s for at t orneys’ fees and super- int erest . I T I S THEREFORE ORDERED t hat PSI ’s Mot ion for Part ial Sum m ary Judgm ent on I ssue of Breach of Cont ract for Delay ( ECF# 100) is denied, but Tenawa’s count erclaim for breach of cont ract for delay is const rued as seeking recovery and relief exclusively under t he lim it ed t erm s of MSA’s ¶ 10; 46 I T I S FURTHER ORDERED t hat Tenawa’s Mot ion for Sum m ary Judgm ent on PSI ’s Unj ust Enrichm ent / Quant um Meruit Claim for PSI ’s work t hat it never billed or invoiced Tenawa ( ECF# 102) is grant ed; I T I S FURTHER ORDERED t hat PSI ’s Mot ion for Part ial Sum m ary Judgm ent on Cont ract s ( ECF# 103) and Tenawa’s Mot ion for Part ial Sum m ary Judgm ent t o Enforce Plaint iff’s Published Price List ( ECF# 110) are denied; I T I S FURTHER ORDERED t hat Tenawa’s Mot ion t o St rike ( ECF# 128) is grant ed t o t he ext ent indicat ed above; I T I S FURTHER ORDERED t hat Tenawa’s Mot ion for Part ial Sum m ary Judgm ent on Mechanic’s Lien Claim ( ECF# 106) is grant ed; I T I S FURTHER ORDERED t hat Tenawa’s Mot ion for Sum m ary Judgm ent on At t orney’s Fees and super- int erest ( ECF# 108) is grant ed. Dat ed t his 28t h day of Decem ber, 2018 at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 47

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.