Mowat Construction Company v. Dorena Hydro, LLC, No. 6:2014cv00094 - Document 97 (D. Or. 2015)

Court Description: OPINION AND ORDER. Dorena's motion for an order allowing interlocutory appeal 84 is DENIED. Dorena's partial motion for summary judgment 76 is also DENIED. The parties' requests for oral argument are DENIED as unnecessary. The parties shall submit, within 20 days of the date of this Opinion, an amended stipulated scheduling report setting forth a mutually agreed upon time-line for trial phases one and two, as well as for discovery related to the third-party claims, or the Court will consider sanctions. See formal OPINION AND ORDER. Signed on 9/23/2015 by Chief Judge Ann L. Aiken. (rh)

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Mowat Construction Company v. Dorena Hydro, LLC Doc. 97 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Case No. MOWAT CONSTRUCTION COMPANY, a Washington corporation, 6:14-cv-00094-AA OPINION AND ORDER Plaintiff, v. DORENA HYDRO, LLC, an Oregon limited liability company; WESTCHESTER FIRE INSURANCE COMPANY, a Pennsylvania surety company, Defendants. DORENA HYDRO, LLC, an Oregon limited liability company, Third-party plaintiff, v. MOWAT CONSTRUCTION COMPANY, a Washington corporation; LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts corporation, Third-party defendants. John P. Ahlers Ahlers & Cressman PLLC 999 Third Avenue, Suite 3800 Seattle, Washington 98104 Thomas A. Larkin John Spencer Stewart Tyler J. Storti Stewart Sokol & Gray LLC 2300 SW First Avenue, Suite 200 Portland, Oregon 97201 Attorneys for defendants Page 1 - OPINION AND ORDER Dockets.Justia.com John C. Theiss Davis Wright Tremaine, LLP 1201 Third Avenue, Suite 2200 Seattle, Washington 98101 Marcus W. Eyth Derek D. Green Blake J. Robinson Davis Wright Tremaine, LLP 1300 SW Fifth Avenue, Suite 2400 Portland, Oregon 97201 Attorneys for defendant/third-party plaintiffs AIKEN, Chief Judge: Defendant and third-party plaintiff Dorena Hydro, LLC ("Dorena") seeks leave to interlocutorily appeal the Court's July 16, 2015, order ("Order") pursuant to 28 U.S.C. § 1292(b) In addition, Dorena moves for partial summary judgment, under Fed. R. Civ. P. 56, plaintiff and ("Mowat") on its breach of contract third-party defendant Mowat For the reasons set forth below, counterclaim against Construction Company Dorena's motions are denied. BACKGROUND 1 This dispute arises out of retrofitting altered an existing flood control dam, Lane County, Oregon, with electrical that located on Dorena Lake in generator facilities to produce hydroelectric power 1 activities equipment ("Project") . and In early In moving for summary judgment, Dorena submitted hundreds of pages of documents relating to the parties' contract negotiations. Mowat furnished some of the same evidence, as well as additional materials regarding the original contractor and the parties' Project performance, in opposing summary judgment. Where duplicative, the Court cites to Dorena's submissions. Page 2 - OPINION AND ORDER 2011, Dorena, as Project owner, 2 sought proposals for the Project. Dorena initially named the James W. Fowler Company ("Fowler") as contractor. Among the issues negotiated between Dorena and Fowler was a group of work items, designated in the contract as "allowance items," which were not fully priced and would be adjusted at a later date based on the actual costs incurred. progressed, As negotiations Fowler became concerned that Dorena vvas designating large portions of the contract as allowance items in order to manipulate the Project price downward to meet its lender's funding requirements. Nevertheless, Fowler and Dorena reached an agreement on core Notably, terms and, in May 2011, executed a written contract. that agreement specified the pricing of allowance items was deferred and that an estimated price was used contingent upon renegotiation. 3 In contract. September 2011, This amendment, Dorena proposed an amendment to the drafted by Dorena attorney Kirk Retz, declared that the "[c]ontractor used its. best efforts to estimate of [sic] the actual cost of such allowance items," although they would be paid "on an actual cost basis." Stewart Decl. Ex. G, at 12. While the "best efforts" language was not incorporated into the 2 It is undisputed that several other entities related to or in privity with Dorena, including Symbiotics, LLC, have been involved with the Project at various stages; the Court refers collectively to these entities as "Dorena." 3 While the initial Dorena/Fowler agreement included a statement that the listed price constituted the "[c]ontractor's best estimate for the total cost of the work," it is undisputed that the pricing of the allowance items in fact came from the Schedule of Values ("SOV") provided by Dorena. Stewart Decl. Ex. E, at 28; Stewart Decl. Ex. J, at 6-7, 11-14. Page 3 - OPINION AND ORDER final iteration of the Dorena/Fowler amended contract, the parties nonetheless agreed on a cost-reimbursable structure for allowance items. By early 2 012, despite the amended agreement, Dorena and Fowler were at odds regarding the Project design, allowance item pricing, and Dorena's ability to assure payment. The relationship continued to deteriorate and, in March or April 2012, Dorena terminated Fowler's contract. Brent Smith, Dorena's designated representative at all relevant time, contacted Tim Calohan, Mowat's project manager, who was doing preconstruction work on Dorena's ventures, other hydroelectric and asked whether Mowat would be interested in taking over the Project. After conferring with Geno Jorgensen, Mowat's division management, Calohan responded to Smith in the affirmative. In early April 2012, Smith and Jef Krohn, Dorena's senior project manager, detailed to Calohan and Jorgensen various aspects of the Project. Amongst other topics, Smith and/or Krohn discussed that Dorena risked losing its financing if it did not have a contractor under contract shortly and, as a result, Dorena intended to use cost-reimbursable allowance items. Specifically, Smith clarified that "placeholder" numbers would be used for allowance items until their actual costs could be determined, which "would be what would be paid." Stewart Decl. Ex. J, at 13-19. On April 2, 2012, in anticipation of the parties' first in- person meeting, Krohn sent an email to Calohan attaching an SOV. Because the allowance categories did not list any values, Calohan Page 4 - OPINION AND ORDER replied on April 6, 2012: need the actual$ value to plug-in for the allowance items [as it] was not on the spreadsheet you sent." First Theiss Decl. Ex. 16, at 1. Krohn eventually sent a completed SOV with original engineer [Bingham Engineering's] estimated cost for these items" and remarking know you didn't have enough time to price out all of it [so] I'll let you decide what you would like to include as allowance items or not." Id.; Stewart Decl. Ex. J, at 11-12. Thereafter, Retz drafted and circulated a form agreement for a fixed contract price - Decl. Ex. 11, at 1, draft raised, i.e. 29-30. no allowance i terns. On April 18, addressing several 2013, issues First Theiss Retz published a that Jorgensen had as well as inserting the same allowance items provision that Dorena had attempted to use in amending Fowler's contract, including the same typo. Compare Stewart Decl. Ex. G, at 1-2, with First Theiss Decl. Ex .. 12, at 1, 29-30; see also Stewart Decl. Ex. J, at 4, 6, 11-14 (Smith testifying that he up with the contract with allowance items and had Kirk Retz draft it"). On April 20, 2012, Calahan emailed Krohn with an updated SOV, wherein Mowat had filled in proposed pricing for the various non-allowance items that had been left blank in the last version provided by Krohn, explaining think it would be best if . you can work on how we want to show the allowance items." Stewart Decl. Ex. P, at 1. That same day, Calahan, Jorgensen, Smith, and Retz met in Mowat's Woodinville, Washington, contract negotiations. Calahan, and Smith agreed that Jorgensen, Page 5 - OPINION AND ORDER office to finalize "best efforts" under the truncated time-frame meant only that Mowat had worked with Dorena to identify potential work items not covered by Dorena's SOV. See, e.g., Eyth Decl. Ex 1, at 2-7, 9-12; First Theiss Decl. Ex. 7, at 7; First Theiss Decl. Ex. 8, at 2-3; First Theiss Decl. Ex. 9, at 3-7; Stewart Decl. Ex. J, at 11-19, 26; Stewart Decl. Ex. K, at 3-7; Stewart Decl. Ex. L, at 8-13; Stewart Decl. Ex. M, at 16-18; see also First Theiss Decl. Ex. 7, at 4 ("[Mowat] needed, like, a month and a half or something to look at the drawings to provide a - an accurate estimate" but Dorena was "under a time crunch to get the contract written and done"). The April 20, 2012, meeting resulted in the SOV that was ultimately used as Attachment A to the final Dorena-Mowat agreement ("Contract"), which was executed on or around April 24, 2012. See generally Eyth Decl. Ex. 4; First Theiss Decl. Ex. 13. With the exception of the bid items Mowat added to complete the SOV, the dollar values for virtually all of the allowance items remained unchanged from the list originally provided by Krohn and, in turn, matched the figures employed in Fowler's agreement. The parties' relationship began to devolve shortly after the Project was initiated in the summer of 2012. continued their construction efforts, They nevertheless and even renegotiated the Contract to allow for acceleration, because Dorena was to receive a substantial grant if the Project was completed by the end of 2013. In December 2013, Dorena ordered Mowat to replace Calahan as project manager pursuant to the Contact; Mowat refused. Page 6 - OPINION AND ORDER On January 17, 2014, Mowat initiated this lawsuit, asserting several contract-related claims arising out of Dorena's alleged failure to pay millions of dollars due and owing, and significant Project delays. On February 4, 2014, Dorena terminated Mowat's Contract and produced an exit plan that required Mowat to fully vacate the Project site by February 7, 2014. On February 5, 2014, Mowat filed alleged an amended several complaint; affirmative Dorena defenses and timely answered counterclaims. and Mowat subsequently repeatedly requested permission to have an on-site representative present, subject to reasonable terms and restrictions, while the Project was being completed; Dorena denied these requests. On April 4, 2014, the Court granted in part and denied in part Mowat's motion for entry onto the Project site. On June 11, 2014, Mowat filed adding a claim under the Miller Act, a second amended complaint as well as adding defendant Westchester Fire Insurance Company. Dorena responded by reiterating its affirmative defenses and counterclaims against Mowat, and alleging new counterclaims against third-party defendant Liberty Mutual Insurance Company. On JVlay 18, 2015, the Court granted non-party EC Company's motion to quash the subpoena duces tecum issued by Dorena to the extent it was premised on Dorena's purported need for five years' worth of EC Company's records relating to other hydroelectric projects. The Court then granted, via the Order, Dorena's motion to add HydroTech Engineering, LLC, Dongfang Electric Company, Dongfeng Electric Machinery Company, Page 7 - OPINION AND ORDER Ltd., and manufacturers and/ or suppliers of the underlying turbines, as defendants. The Court further granted Mowat's motion to bifurcate, thereby allowing the case to proceed in two phases - the first phase limited to the issue of whether Dorena or Mowat breached the Contract, and the second phase devoted to any remaining issues. At that time, parties were ordered to submit within 30 days a the stipulated scheduling report setting forth a time-line for trial phases one and two, as well as for discovery related to the new third-party claims. On July 30, 2015, Dorena moved for partial summary judgment. On August 12, 2015, Dorena moved for leave to file an interlocutory appeal. On August 14, 2015, the parties filed a scheduling report detailing their various points of disagreement regarding the scope of discovery and time-frame for phase one of trial. STANDARDS Three criteria must be met before the court can issue an order certifying an interlocutory appeal: law" must be present; (1) na controlling question of (2) there must be a nsubstantial ground for difference of opinion" as to the controlling question of law; and (3) "an immediate appeal from the order may materially advance the ultimate termination Certifications of under the 29 litigation." U.S.C. 28 1292(b) § U.S. C. are § 12 92 (b) . reserved for nextraordinary cases." U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. F.3d 1064, departure 1966); 1068 from see also James v. n.6 the (9th normal Page 8 - OPINION AND ORDER Cir. rule Price Stern Sloan, 2002) that (n[s]ection only final Inc., 1292(b) judgments 283 is a are appealable, and therefore must be construed narrowly"). The party seeking the interlocutory appeal bears the burden of establishing that "all three 1292(b) § requirements are met." Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show "that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T. W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. U.S. 317, 323 (1986). Celotex Corp. v. Catrett, 477 If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material moving party; and (2) all fact should be inferences resolved against the to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630. Page 9 - OPINION AND ORDER DISCUSSION I. Motion for Interlocutory Appeal Dorena contends that leave to file an interlocutory appeal should be granted because it is "entitled to a jury in the first stage of the bifurcated trial." Dorena's Mot. Interlocutory Appeal 4. As a preliminary matter, the Order's only reference to a bench trial was made in recognition of Mowat's request for bifurcation. Order 4. Thus, the Court's ruling was limited to whether bifurcation was appropriate and whether Dorena was entitled to file a third-party complaint. 4 See generally id. Indeed, Dorena acknowledges that the Court withheld consideration of whether phase one would proceed as Interlocutory Appeal a bench or jury trial. See Dorena's Mot. (seeking leave to file an interlocutory appeal "only to the extent [the Order] determines the first stage of the bifurcated trial will be tried to the court" and noting that the "Order did not address [its] argument that the first stage of the trial should be to a jury") As such, Dorena's motion is not ripe. See W. Oil & Gas Ass'n v. Sonoma Cnty., (9th Cir. 1990), cert. denied, 498 U.S. 905 F.2d 1287, 1290 1067 (1991) ("[t]he ripeness inquiry asks whether there yet is any need for the court to act") . 4 As a result of the parties' failure to comply with the Order's instruction to file a stipulated scheduling report, this case cannot proceed to the pre-trial stage, during which any evidentiary disputes would be resolved and the Court would determine whether phase one advances as a bench or jury trial. The present motions further prolong the advancement of this case. Page 10 - OPINION AND ORDER Regardless, Dorena neglected to carry its burden in relation to the three requisite elements. question of law is present, Accepting that a controlling Dorena does not meaningfully address whether a substantial ground for difference of opinion exists or whether an immediate appeal from the Order would materially advance the ultimate termination of this case. Rather, Dorena simply concludes it has a right to a jury trial on any Contract-related claims under the Seventh Amendment and that, "if stage one is tried to the court and the court rules in Mowat's favor, [they] can argue on appeal that they were deprived of th[is] right." Dorena's Mot. Interlocutory Appeal 5-6. Yet the historically fact that "[c]laims for breach of contract are 'legal'" does not mean that proceeding with a bench trial during phase one would constitute reversible error. Myers v. U.S. Dist. Ct. for Dist. of Mont., 1980). Mowat has maintained throughout litigation that "the evidence position that Dorena's 620 F.2d 741, 743-44 the entirety (9th Cir. of this . overwhelmingly supports [its] attempted termination 'for default' was completely without basis and was merely a pre-textual retaliation for Mowat initiating this action to recover the millions of dollars it is owed." Mowat's Resp. addressed in section II, Accordingly, a to Mot. Interlocutory Appeal 5. As Mowat's position is not without merit. threshold issue exists concerning whether the evidence is such that a reasonable jury could return a verdict for Dorena. If Mowat is entitled to judgment as a matter of law on its wrongful termination claim, proceeding with a bench trial could be Page 11 - OPINION AND ORDER the most efficient and judicious means of resolving phase one of this dispute. (9th Cir. See Fuller v. 1995) City of Oakland, 4 7 F. 3d 1522, 1533 (denial of a jury trial in a civil case does not constitute harmful, reversible error where the "district could have granted a judgment as a matter of law") court ( citations and internal quotations omitted); see also United States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir. 1997) the district court's judgment, (affirming even though it "erred by denying [the plaintiff] her right to demand a jury trial," because, "[u]pon the evidence presented to the district court, no reasonable jury could have found for [the plaintiff]") (citation omitted). Finally, given the protracted and antagonistic nature of this lawsuit, in conjunction with the fact that the parties are on the precipice of proceeding with phase one of trial, allowing a piecemeal interlocutory appeal on the narrow collateral question of Dorena's entitlement to a jury trial would only result in increased complexity and additional delay. Koller, 4 7 2 U.S. "succumb[ing] distaste 4 2 4, 440 See Richardson-Merrell, ( 198 5) Inc. v. (generally cautioning against to enticing suggestions to abandon the deeply-held for piecemeal litigation") (citation and internal quotations omitted); see also Brizzee v. Fred Meyer Stores, Inc., 2008 WL 426510, statutory unfettered *3 criteria (D.Or. are discretion Feb. 13, 2008) satisfied, to deny ("[e]ven when all three district court certification") judges (citations have and internal quotations omitted). Dorena's motion for an order allowing an interlocutory appeal is denied. Page 12 - OPINION AND ORDER II. Motion for Partial Summary Judgment To establish a claim for breach of contract, must prove "the existence of a contract, its the plaintiff relevant terms, plaintiff's full performance and lack of breach and defendant's breach resulting in damage to plaintiff." Slover v. Or. State Bd. of Clinical (1996) Soc. Workers., 144 Or.App. 565, 570, 927 P.2d 1098 (citation and internal quotations omitted). A. Contract Terms Section execution of 2.5A of the Contract this agreement, provides: Contractor met "[p]rior with to Owner, the fully investigated the Site, fully investigated the documents referenced in the RFP and assisted Owner in the development of the information that forms the Scope of Work listed in Attachment A [and] Owner has relied on Contractor's construction expertise." First Theiss Decl. Ex. 13, at 16. The Contract's compensation provision, section 7.1, states: The Contract Price is Fourteen Million, Six Hundred Seventy Thousand, Seven Hundred Seventy Nine Dollars and 02/100 ($14, 670,779. 02) as more fully set forth in the schedule of values in Attachment A (the "Contract Price") . A portion of the Contract Price contains allowance items. Contractor used its best efforts to estimate of [sic] the actual cost of the allowance items. Contractor will be paid for allowance items on an actual cost basis. To incentivize Contractor to minimize the cost of these allowance items, Contractor's overhead and profit is calculated based on the Contract Price minus the allowance items. Contractor will receive no overhead or profit for any such allowance items. Id. at 28 (emphasis added). Attachment A, in turn, specifies that "[a]llowance item pricing is budgetary only, Page 13 - OPINION AND ORDER provided by Bingham Engineering, and [is] subject to change per actual construction costs." Id. at 53. B. Interpretative Framework In interpreting a contract under Oregon law, the court employs a three-step analysis. P.2d 1019 (1997) Yogman v. Parrott, 325 Or. 358, 361, 937 (citations omitted). First, the court determines whether the contractual provision is ambiguous. Batzer Const., Inc. v. Boyer, 204 Or.App. 309, 315, 129 P.3d 773, rev. denied, 341 Or. 366, 143 P.3d 239 (2006) (citations omitted). A contractual term is ambiguous "if it has no definite significance or if it is capable of more than one sensible and reasonable interpretation." Id. at 313 (citation and internal quotations omitted). In addition to the text and context, the court considers the circumstances surrounding the creation of a written agreement, including "the parties' precontract negotiations." Id. at 316-20 (citations omitted); see also Or. Rev. Stat. § 41. 7 4 0 (outlining three exceptions to the general rule prohibiting courts from considering extrinsic evidence to establish the terms of a written agreement}. "The court must, if possible, construe the contract so as to give effect to all of its provisions." Williams v. RJ Reynolds Tobacco Co., 351 Or. 368, 379, 271 P.3d 103 (2011). Second, if the text, context, and circumstances of formation evince ambiguity, contracting the court evaluates extrinsic evidence of the parties' intent. Batzer, 204 Or.App. at 316-17 (citations omitted). If the "provision remains ambiguous after the first two steps have been followed, the court relies on appropriate Page 14 - OPINION AND ORDER maxims of construction" to determine the provision's meaning. Yogman, 325 Or. at 364. Disposition of a contract generally not appropriate provision "is so clear dispute unless as to the as a matter meaning preclude of of the by doubt a law is disputed reasonable person," Deerfield Commodities v. Nerco, Inc., 7 2 Or. App. 3 05, 317, 696 P.2d 1096, rev. denied, 299 Or. 314, 702 P.2d 1111 (1985); see also PGF Care Ctr., Inc. v. Wolfe, 208 Or.App. 145, 151, 144 P.3d 983 (2006) (summary judgment is proper where the court finds no ambiguity at the first step of this analysis). C. Analysis Dorena asserts that summary judgment is warranted on its breach of contract claim because Mowat "made no independent effort to estimate allowance item costs - contrary to its representation in the Contract." Dorena's Mot. Partial Summ. J. 16. To reach this conclusion, provision Dorena as construes unambiguously "diligent efforts to the Contract's requiring appraise or value allowance items." Dorena's Reply to Mot. other words, because the Dorena maintains actual cost of Mowat the to "best efforts" have utilized actual cost allowance items, as the J. 10. In Partial Summ. that Mowat breached the the of Contract determined through the construction process, exceeded those listed in the SOV and, by extension, endorsed by Mowat. See, e.g., Dorena's JYlot. Partial Summ. J. 11, 16-17. Where, as here, the agreement does not define "best efforts" or the corresponding obligation Page 15 - OPINION AND ORDER i.e. to "estimate" courts generally decline resolving breach of contract claims at summary judgment. See Samica Enters.,. LLC v. Mail Boxes Etc. USA, Inc., 637 F.Supp.2d 712, 717 (C.D.Cal. 2008) ("[w]hether a a best efforts under the circumstances is reserved for the jury") Events & Mktg., Inc. 1133 200 6) (D. Hawai' i factual question usually (citation omitted); v. AMCON Distrib., defendant used see also Television Co., 484 F.Supp.2d 1124, (collecting cases discussing the variable "best effort" standards to conclude that "the exact contours of the obligation to fulfill a 'best efforts' clause are unclear"); United Telecomm v. Am. Television & Comm. Corp., 536 F.2d 1310, 1319 (lOth Cir. the 1976) (because both parties "introduced evidence bearing on negotiations efforts' and a the question Baseball Club Assocs. (1st Cir. found no 1987), cases, meaning v. cert. and for N.E. the jury Baseball, denied, none intended have 935 cited, the term [exists]"); Inc., 485 U.S. been for Triple-A 832 F.2d 214, (1988) 'best 228 ("[w]e have holding that 'best efforts' means every conceivable effort" and finding no breach of contract even though the plaintiff "made little effort"). In any event, the text and context of section 7 .. 1 cannot, as a matter of law, be interpreted solely as Dorena suggests. The dictionary defines "best efforts" as "diligent attempts to carry out an obligation measured by the measures a reasonable person in the same circumstances and of the same nature as the acting party would take." 2014). Thus, Black's Law Dictionary 191 (lOth ed. although reasonable diligence is the cornerstone of "best efforts," that term is inherently flexible. Page 16 - OPINION AND. ORDER Id.; see also Equal Emp't Opportunity Comm'n v. R.J. Gallagher Co., 181 F.3d 645, 652 (5th Cir. 1999) ("'[b]est efforts' means such efforts as are reasonable in the light of that party's ability and the means at its disposal and of the other party's justifiable expectations") (citation and internal quotations omitted) . An examination of the circumstances surrounding the Contact's formation is therefore critical to determining whether the "best efforts" provision is ambiguous. "Estimate" is more straightforward. calculate approx[imately] definition. Nev. as omitted) ; 'a Rental Rest. 957 947, 'estimate' (1988). Courts have repeatedly term consistently with the presiding dictionary See F.Supp.2d Servs., (D.Nev. Inc. 2013) Inc. v. Clark 'estimate' is Cnty., ("Merriam-Webster rough or approximate Equip. , v. calculation'") McDaniel 981 defines (citation Builders, Cal.App.4th 445, 449, 109 Cal.Rptr.2d 922 (2001) definition of "[t] o the amount or extent of." Webster's II New Riverside Univ. Dictionary 444 construed this That word means Inc., 91 ("[t]he dictionary 'an approximate computation of the probable cost of a piece of work made by a person undertaking to do the work'") Shelter (citation omitted); see also Kruse Concepts, Mut. "estimate [is] Ins., 16 not a S.W.3d 734, 738 statement of fact" misrepresentation claim) (Mo.App.E.D. for (citation omitted). Page 17 -OPINION AND ORDER Inc. v. 2000) (an the purposes of a Accordingly, as a matter of plain meaning, Dorena's position is unfounded. 5 "Estimate" is a term that, by its very nature, connotes inexactness. See Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., definition, accuracy, 101 N.J. 95, 108, 501 A.2d 125 (1985) an estimate is a mere approximation [that] ("[b]y precludes and its ordinary meaning is to calculate roughly or to form an opinion from imperfect data [such that the term imbues] no more certainty than the words 'about' or 'more or less'") (citation and internal quotations and brackets omitted) . As a result, nothing. in the Contract unequivocally required Mowat's "beSt efforts" to accurately reflect the market value of the allowance items that would ultimately be utilized during the Project. To reach a contrary result would require this Court to omit the two sentences following the "best efforts" provision in section 7. 1, as well as Attachment A. These portions of the Contract clearly articulate that, notwithstanding any estimate furnished by Mowat, allowance items would be compensated without "overhead or profit" on "an actual cost basis," which could only be determined prospectively once construction was underway. 6 First Theiss Decl. 5 Accepting Dorena's reading as reasonable merely renders the "best efforts" provision ambiguous. See Cent. Or. Indep. Health Servs., Inc. v. State, 211 Or.App. 520, 529, 156 P.3d 97, rev. denied, 343 Or. 159, 164 P.3d 1160 (2007) ("the threshold to show ambiguity is not high") (citation and internal quotations and brackets omitted) . 6 Dorena's reliance on section 22.15 of the Contract- which states, "[i]n the event of any conflict or inconsistency between a provision in one document and a provision in another document, the document with the higher priority [and/or] that requires the highest standard of performance on the part of the Contractor shall control" - is misplaced. First Theiss Decl. Ex. 13, at 44Page 18 - OPINION AND ORDER Ex. 13, at 28, 53. In sum, irrespective of the exact confines of the phrase "best efforts," the sentence at issue, when read in its entirety and in conjunction with the Contract as a whole, can be rationally interpreted as imposing an obligation on Mowat to, given the time constraints inherent to the Project, provide a rough approximation as to value. That is precisely what transpired here. Evidence of the underlying circumstances of Contract formation further corroborate the parties' mutual intent, as evinced in the text and context of the Contract, regarding Mowat's "best efforts." Jorgensen, due to the Calahan, and Smith each independently testified that, extremely limited time-frame and incomplete design information, the "best efforts" provision meiely required Mowat to work with Dorena to identify any reasonably foreseeable work items not covered in Bingham Engineering's SOV. 7 Eyth Decl. Ex. 1, at 2- 45. The Court finds that sections 2.5A and 7.1 are in harmony with Attachment A, such that no issue exists as to priority. 7 Dorena implies in a footnote that Mowat had sufficient time to "properly estimate allowance item costs" because "Dorena provided Mowat with the [SOV] on April 6, 2012," and Mowat submitted a "bid for the [P]roject in 2011." Dorena's Mot. Partial Summ. J. 9 n.3 (citations omitted); see also Morales v. Woodford, 388 F.3d 1159, 1168 n.14 (9th Cir. 2004), cert. denied, 546 U.S. 935 (2005) (court need not consider substantive arguments raised only in a footnote). As discussed herein, however, the uncontravened evidence of record establishes that the were in agreement that Mowat did not have adequate time to evaluate the actual cost of the allowance items prior to the date on which the Contract was executed. See, e.g., Eyth Decl. Ex. 1, at 2-7, 9-12; Eyth Decl. Ex. 3, at 4; Eyth Decl. Ex. 6; First Theiss Decl. Ex. 7, at 4-5; First Theiss Decl. Ex. 8, at 2; First Theiss Decl. Ex. 9, at 3-7; First Theiss Decl. Ex. 16, at 1. Furthermore, that Smith also testified he anticipated Mowat would "do [its] own estimate" simply establishes a disputed issue of material fact. Compare First Theiss Decl. Ex. 9, at 3, with Page 19 - OPINION AND ORDER 7, 9-12; First Theiss Decl. Ex. 7, at 7; First Theiss Decl. Ex. 8, at 2-3; First Theiss Decl. Ex. 9, at 3-7; Stewart Decl. Ex. J, at 11-19, 26; Stewart Decl. Ex. K, at 3-7; Stewart Decl. Ex. L, at 813; Stewart Decl. Ex. M, at 16-18; see also Batzer, 204 Or.App. at 321 ("[i]f, as part of the transaction in explaining the term, one of the parties had made an admission as to what a term meant, that would be admissible against him") ( citation and internal quotations and brackets omitted). Moreover, Dorena furnished no argument or evidence indicating that had Mowat made an independent effort to estimate allowance item costs prior to Contract formation, its behavior would have been Mot. different. See generally Dorena's Partial Summ. J.; Dorena's Reply Partial Summ. J.; see also Nat'l Data Payment Sys., Inc. v. Meridian Bank, summary judgment F. Supp. 2d at 212 F.3d 849, under 718 analogous (plaintiffs 854 (3d Cir. 2000) circumstances); could "not maintain (denying Samica, a 637 breach of contract claim based on the 'best efforts' provision" where "they have not raised a genuine issue that [their companies] would have acted any effort"). that differently In fact, Dorena had had [the defendants] exerted greater the record before the Court generally reflects a strong incentive to get a contractor under contract within a specified time-frame such that Dorena was intent on going forward with Mowat once Fowler was terminated. Finally, the parties' summary judgment arguments predominately relate to the meaning of the "best efforts" provision and whether Stewart Decl. Ex. J, at 11-19, 26. Page 20 - OPINION AND ORDER Mowat's actions complied therewith. In other words, neither party meaningfully addresses whether the this is Partial a condition Summ. J. precedent 16-17 to was material; however, recovery. (concluding only See that Dorena's the Mot. breach was material because the actual cost of the Project was millions of dollars more than anticipated 8 and, "at Contract formation, allowance items were identified as critical the Therefore, the Court is not convinced that, even assuming the "best provision could be interpreted exclusively as proposed by Dorena, summary judgment would be appropriate. Indeed, it is difficult to see how a representation related to a past circumstance - i.e. one that was completed prior to the execution of the agreement and long before work was contemplated to begin - could render the allegedly non-defaulting party incapable of performance or make it impossible to carry out the agreement as intended. Horizon Home Loans, 2011 WL 3273161, 9 See Lannaghan v. *3 (D.Or. July 27, First 2011) ("[t]he non-breaching party's performance will be excused, and the contract rescinded, only if the breach was which means the breach "goes to the essence of the contract, and renders the 8 Although not dispositive, the Court notes that Mowat introduced a deluge of unrefuted evidence demonstrating that the increase in the actual cost of allowance items was largely due to Project delays and design changes caused by Dorena. See., e.g., Mowat's Resp. to Mot. Partial Summ. J. 20-24; Stewart Decl. Exs. R-T; Second Theiss Decl. Ex. 20. 9 Dorena has not cited to, and the Court is not aware of, any authority in which a breach of a non-prospective "best provision was material. See Dorena's Mot. Partial Summ. J. 12-14 (citing to only one out-of-circuit case wherein a breach of the "best provision, which created an affirmative duty to maximize future revenues, resulted in liability) Page 21 - OPINION AND ORDER defaulting party incapable of performance, or makes it impossible for him to carry out the contract as internal Indus. quotations Park Co., omitted) ; 101 Or.App. see 345, intended") also 349, Commerce ( citations and Mortg. 791 P.2d 132 Co. (1990) modified), rev. denied, 311 Or. 87, 804 P.2d 1169 (1991) v. (as (whether a breach is material "is ordinarily a question of fact for the jury"). This is especially true given that Dorena and Mowat completed 95% of the Project together pursuant to the Contract and there was undisputedly a meeting of the minds concerning the fact that allowance items would be compensated on an actual cost basis, regardless of Mowat's "best efforts." As such, Dorena failed to carry its initial burden in regard to this element. Dorena's motion for partial summary judgment is denied. CONCLUSION Dorena's motion for an order allowing interlocutory appeal (doc. 84) is DENIED. Dorena's partial motion for summary judgment (doc. 76) is also DENIED. The parties' requests for oral argument are DENIED as unnecessary. The parties shall submit, within 20 days of the date of this Opinion, an amended stipulated scheduling report setting forth a mutually agreed upon time-line for trial phases one and two, as well as for discovery related to the thirdparty claims, or the Court will consider sanctions. IT IS SO Dated this p Ann Aiken United States District Judge Page 22 - OPINION AND ORDER

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