United States District Court, W.D. Pennsylvania
84 LUMBER COMPANY, L.P. Plaintiff/Counter-Defendant
GREGORY MORTIMER BUILDERS, et al. Defendants/Counter-Plaintiffs
MEMORANDUM OPINION ON PLAINTIFF'S MOTION IN
LIMINETO PRECLUDE TESTIMONY AND EVIDENCE OF DEFENDANTS'
DIRECT AND INCIDENTAL DAMAGES ECF NO. 271
Pupo Lenihan United States Magistrate Judge.
has filed a Motion in Limine to preclude testimony and
evidence of Defendants' direct and incidental damages,
ECF No. 271 ("Plaintiff's Motion on Certain
Damages"). For the reasons set forth more fully below,
the Court will grant the Motion as to those damages listed in
Defendant's June 15, 2017 Second Amended Pretrial
Statement, ECF No. 268 ("Defendants' Second
APS"), as "B. Additional Direct and Incidental
Damages" items 2 through 5. Said damages constitute loan
interest payments, property taxes and "other carrying
costs", and are therefore within the contractual
limitations of damage provisions for which the Court has
provided detailed analysis and express holdings on more than
Court will also grant said Motion as to the damages listed in
Defendants' Second APS, ECF No. 268, as "C.
Attorney's Fees" in excess of $500, 000 and "to
be determined", as the case presents for bench trial no
component of entitlement to attorney's fees.
Defendants' assert that "there is no need for a
pretrial ruling on this issue", despite their inclusion
of attorney's fees in their Second APS asserted
"Damages" and "Legal Issues", because
Defendants will decide whether to move for attorney's
fees following final judgment. Defendants' Opposition to
84 Lumber Company, L.P.'s Motion in Limine to Preclude
Testimony and Evidence of Defendants' Direct and
Incidental Damages ("Defendants' Opposition to
Motion on Certain Damages"), ECF No. 279 at 1, 3.
the Court will deny said Motion as to the damages listed as
"B.1 Overcharges on Timberlake 13" as the parties
have expressed agreement that-although Defendants have filed
five separate Counts for breach of construction Subcontracts
on five units and no Count with regard to their Subcontract
for Timberlake Unit #13-a claim for damages related to Unit
#13 is properly before the Court under Count IX of
Defendants' Second Amended Counterclaim (ECF No. 44) for
improper billings under an 84 Lumber Commercial Credit
Application form dated May 9, 1997 (the "1997
CCA"). Cf. Memorandum Opinion on the Parties
Multiple Motions and Cross-Motions for Summary Judgment, ECF
No. 166, at 11, n. 18.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
extensively documented factual and legal history in this case
arising from disputes between the parties with regard to (a)
construction material purchases and (b) sub-contracted
construction of housing in Defendants' multi-duplex
residential developments - Timberlake Village (hereafter
"Timberlake") and Cedar Creek - located in Garrett
County, Maryland was set forth by this Court in its Summary
Judgment Opinion, ECF No. 166, and has been summarized in
relevant part in several lengthy Opinions thereafter,
including this Court's February 23, 2017 Memorandum
Opinion granting Plaintiffs Motion for Judgment Pursuant to
Federal Rule of Civil Procedure 52(c), ECF No. 245.
underlying contract documents include the 1997 CCA, and five
(5) 84 Lumber "Subcontractor Agreement/Scope of
Work" forms (the "Subcontractor Agreements")
for three Timberlake projects (Units 8, 11 and 12) and two
Cedar Creek projects (Units 1 and 2). Subcontract Agreement
paragraph 15 contained, among other things, 84 Lumber's
"guarantee" that the work would conform to
specifications, comply with laws, and be free from defects in
workmanship and materials. Paragraph 15 limited 84
Lumber's "liability hereunder" to the
"extent of 84's negligence" and its obligations
to "repair or replacement of any defective or
nonconforming [w]ork." Mortimer agreed that 84 Lumber
was "in no event" liable "for any
consequential, indirect, exemplary or punitive damages of any
type in connection with any claim under this paragraph."
And the paragraph closed with a form language disclaimer of
any further express or implied warranty, including warranty
of merchantability or fitness for a particular purpose.
full discussion of the prior procedural history, including
the Court's holdings following a November, 2016 bench
trial on Defendants' theories (both prior and
last-minute, despite considerations of waiver or estoppel) of
tort liability, see ECF No. 245. The Court observes
that the limited bench trial was held because the
Court's determination of the enforceability of Paragraph
15 as to Subcontract Contract claims "related to/flowing
from 'defects in workmanship or materials'"
rendered a "determination of Defendants' ability to
make out the elements of their tort-based counterclaims"
more critical. ECF No. 245 at 2-3 (citing the October 11,
2016 Memorandum Opinion on Contractual Damage Limitations
(the "Damage Limitations Opinion"), ECF No. 214).
The relevant claims documents are:
April, 2011 Complaint, ECF No. 1, and its claim for breach of
contract under the 1997 CCA owing to nonpayment for
goods/supplies delivered. Plaintiffs asserted entitlement to
attorney's fees was assessed in the March 30, 2016
Memorandum Opinion on the Parties' Multiple Motions and
Cross-Motions for Summary Judgment (the "Summary
Judgment Opinion") at 4 n. 4, and 6, ECF No. 166.
See also ECF NO. 279 at 3, n. 1 (noting that
Plaintiff also lists attorneys' fees as a category of
damages and has no contractual entitlement thereto).
Defendants' Second Amended Counterclaim, ECF No. 44, and
its remaining claims for breach of contract as to each of
five (5) separately subcontracted Timberlake (8, 11, 12) and
Cedar Creek (1, 2) units (Counts IV-VIII), and breach of
contract as to the 1997 CCA (Count IX). Defendant's
asserted entitlement to (a) lost profits and (b) damages
flowing from tort liability and thus outside the contractual
damage limitations of Subcontract Paragraph 15 have been
addressed in ECF No. 214 and ECF No. 245,
Preclusion of Evidence for Attorneys'
Plaintiff notes in its three-page summation of the law on
this issue, there is generally no entitlement to
attorney's fees in a civil claim absent the parties'
contractual agreement to the contrary or another exception,
such as statutory provision, wrongful conduct resulting in
third party litigation or malicious prosecution. See
Plaintiff 84 Lumber Company, L.P.'s Memorandum in Support
of its Motion in Limine to Preclude Testimony and Evidence of
Defendants' Direct and Incidental Damages
("Plaintiffs Memo in Support"), ECF No. 272, at 3-4
(citing Maryland and District Court cases); see also,
e.g., Preedman v. Seidler, 194 A.2d 778 (Md.