Panel Specialists, Inc. v. Tenawa Haven Processing, LLC, No. 5:2016cv04140 - Document 141 (D. Kan. 2019)
Court Description: 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)
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Panel Specialists, Inc. v. Tenawa Haven Processing, LLC Doc. 141 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 cont ract ual disput e act ion is over t he inst rum ent at ion and elect rical ( “ I &E” ) services provided by t he plaint iff/ count erclaim defendant Panel Specialist s, I nc. ( “ PSI ” ) in t he const ruct ion of a nat ural gas processing plant owned by t he defendant / count erclaim plaint iff Tenaw a Haven, LLC ( “ Tenawa” ) . This court filed an order on Decem ber 28, 2018, ( ECF# 135) deciding t he part ies’ pending disposit ive m ot ions. Tenawa has filed a m ot ion t o reconsider. ECF# 136. I t asks t he court t o reconsider t he denial of it s m ot ion for part ial sum m ary j udgm ent and cure what it argues is an “ int ernal inconsist ency” in t he court ’s findings by grant ing sum m ary j udgm ent t o it . ECF# 136, p. 1. The court finds no such inconsist ency and denies Tenawa’s m ot ion for t he reasons st at ed herein. Because t he order denying Tenawa’s sum m ary j udgm ent m ot ion was neit her disposit ive nor a final j udgm ent , D. Kan. Rule 7.3( b) is applicable and requires a m ot ion t o reconsider be based on: “ ( 1) an Dockets.Justia.com int ervening change in cont rolling law; ( 2) t he availabilit y of new evidence; or ( 3) t he need t o correct clear error or prevent m anifest inj ust ice.” “ Thus, a m ot ion for reconsiderat ion is appropriat e where t he court has m isapprehended t he fact s, a part y’s posit ion, or t he cont rolling law.” Servant s of Paraclet e v. Does, 204 F.3d 1005, 1012 ( 10t h Cir. 2004) . A m ot ion t o reconsider is not t he losing part y’s opport unit y t o rehash argum ent s already addressed and rej ect ed, “ t o m ake it s st rongest case[ ,] or t o dress up argum ent s t hat previously failed.” Voelkel v. GMC, 846 F. Supp. 1482, 1483 ( D. Kan.) , aff'd, 43 F.3d 1484 ( 10t h Cir. 1994) . A decision on a m ot ion t o reconsider is com m it t ed t o t he court ’s “ considerable discret ion.” Brown v. Presbyt erian Healt hcare Servs., 101 F.3d 1324, 1332 ( 10t h Cir. 1996) , cert . denied, 520 U.S. 1181 ( 1997) . I n m oving for sum m ary j udgm ent , Tenawa asked t he court t o enforce PSI ’s 2013 published price list as const it ut ing t he governing schedule of rat es under t he Mast er Service Agreem ent ( “ MSA” ) which was never properly m odified, superseded, or replaced according t o t he MSA’s t erm s. The m ot ion also sought a finding t hat Tenawa never received writ t en not ice of PSI ’s rat e increase and never gave it s writ t en approval of a rat e increase. Based on t hese findings and conclusions, Tenawa want ed t he court t o apply t he 2013 published price list as a schedule of rat es and t hereby reduce PSI ’s claim ed dam ages by $244,096.16. ECF# 135. 2 The court denied bot h part ies’ sum m ary j udgm ent m ot ions on t his very issue and found “ a quest ion of m at erial fact over whet her t here was 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 .” ECF# 135, p. 36. I t did so only aft er fully describing t he part ies’ com pet ing evidence and argum ent s. The court em phasized t hat , “ [ t ] he 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 .” I d. Earlier in t he order, t he court referenced t his price list and observed, “ [ t ] he part ies’ underst andings differ over t his price list ’s purpose, effect and operat ion.” I d. at p. 5. I n short , t he court found t he part ies’ t est im ony over t heir underst anding of t his provision t o be conflict ing and t he part ies’ evidence of t heir perform ance under t he MSA as not resolving t heir disput ed underst andings. The court also expressed: There is no direct evidence from 2013 or 2014 t hat t hey [ t he part ies] 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 s. 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 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 3 “ 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. ECF# 135, pp. 36- 37. I n m oving for reconsiderat ion, Tenawa believes t he court m ade t wo findings t hat com pel a sum m ary j udgm ent ruling in Tenawa’s favor on t his issue. The first finding is t hat t he part ies did not am end t he MSA and did not follow t he MSA’s t erm s for changing a schedule of rat es. ECF# 135, p. 8. The second finding is t hat , “ t he Bergerons’ t est im ony cert ainly support s a finding t hat t hey believed t he price list was cont rolling when t he MSA was execut ed, . . . .” I d. at 36. Tenawa essent ially cont ends t hat t here was not enough evidence t o disagree wit h t he Bergerons’ t est im ony and wit h Am eringer’s t est im ony as t o require subm ission t o t he j ury. I n short , Tenawa want s t he court t o weigh t he evidence and decide t he disput e by concluding t hat t he 2013 published price list could be not hing else t han a schedule of rat es under t he MSA. Sum m ary j udgm ent st andards preclude t his result . Tenawa’s argum ent s show no int ernal inconsist ency in t he court ’s reasoning. The court never found t hat t he 2013 published price list const it ut ed a schedule of rat es under t he MSA and t hat conclusion is not com pelled by t he court ’s t wo findings cit ed above. I n sum m arizing t he 4 Bergerons’ t est im ony about t he purpose and force of t he 2013 published price list , t he court did not use “ cont rolling” as equat ing wit h a “ schedule of rat es.” Rat her, t he court used “ cont rolling” as arguably consist ent wit h PSI ’s posit ion t hat t he price list ’s effect was not fixed by t he MSA’s t erm s but by t he ongoing pract ices of updat ing, bidding or est im at ing pract ices evidenced in t his t ransact ion. The court ’s sum m ary j udgm ent order set s out t he com pet ing evidence and inferences creat ing a genuine issue of m at erial fact over t he part ies’ underst anding of t he purpose and effect of t he 2013 published price list . Finally, t his genuine issue of m at erial fact is not inconsist ent wit h t he court ’s findings t hat t he MSA was not am ended and t hat t he part ies did not follow Sect ion 6 of t he MSA. Not hing argued in Tenawa’s m em oranda seeking reconsiderat ion persuades t his court t hat it s findings support only one conclusion, t hat is, t he 2013 published price list was what t he part ies j oint ly underst ood t o be t he governing schedule of rat es under t he MSA. Tenawa argues it defies “ com m on sense” for t he part ies t o have a MSA wit hout set t ling such a key t erm as t he schedule of rat es. I f so, t hen com m on sense is also subj ect t o quest ion over why t he part ies did not label or designat e t he price list as a schedule of rat es, did not confirm t he price rat es when t he significant ly higher 2014 est im at e was subm it t ed, and did not enforce t he price rat es during t he act ual perform ance of t he cont ract . The court ’s analysis and findings in it s sum m ary j udgm ent 5 order are m ore t han sufficient t o sust ain a genuine issue of m at erial fact over t he part ies’ int ent ions concerning t his published price list . I T I S THEREFORE ORDERED t hat Tenawa’s m ot ion t o reconsider ( ECF# 136) t he court ’s ruling ( ECF# 135) denying Tenawa’s Mot ion for Part ial Sum m ary Judgm ent t o Enforce Plaint iff’s Published Price List ( ECF# 110) is grant ed insofar as t he court has reconsidered it s ruling but is denied in t hat court sust ains it s prior ruling denying sum m ary j udgm ent . Dat ed t his 13t h day of February, 2019, at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 6
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