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Coshocton Grain Co. v. Caldwell-Baker Co.

United States District Court, D. Kansas

August 22, 2017

COSHOCTON GRAIN COMPANY, Plaintiff/Counterclaim-Defendant,
v.
CALDWELL-BAKER COMPANY, Defendant/Counterclaim-Plaintiff. Car Invoice Date Cleaning Roof Labor Roof materials Tota Late Fee Per Month Total Late Fee TOTALS 7000 987.75 772.75 8760.5 7121.00

MEMORANDUM OF DECISION AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE.

         In early 2010, one of Caldwell-Baker's employees was making calls to companies who, he hoped, might want to lease some railcars. He directed one of those calls to Coshocton Grain Company-an Ohio-based grain company. This was a cold-call, as Coshocton Grain and Caldwell-Baker had not done business with one another before. As it turned out, the Ohio company was in the market for more railcars. Things moved quickly and by March 10, 2010, Coshocton Grain and Caldwell-Baker had agreed to a 14-page lease for 25 railcars.

         Over the next year, the relationship expanded. The parties twice agreed to add more cars to the lease. They also extended it. Then, things started to unravel. In the summer of 2013, Coshocton Grain and Caldwell-Baker discovered they had conflicting views about a key provision in the lease. This disagreement blossomed, and Coshocton Grain sued in Ohio federal court. That court transferred the case to Kansas shortly before Thanksgiving 2014. Since then, the parties' disputes with one another have grown to titanic proportions.

         Unable to resolve their many disagreements, the parties tried the case in a bench trial last November. Their presentations consumed five trial days, memorialized in more than 1, 400 pages of trial transcript and 3, 900 pages of exhibits. But there was more. Post-trial, the parties submitted 198 pages of proposed factual findings and legal argument. The court has reviewed this record and done its best to understand Caldwell-Baker's many overlapping and interlocking legal theories. Some of these theories are relatively straightforward. Others are not. The court is now ready to rule.

         For reasons explained in this Decision, the court finds in Caldwell-Baker's favor on five claims. Those five claims assert that Coshocton breached: (1) Lease § 13(b)(i) by failing to reimburse Caldwell-Baker for cleaning the railcars at lease end; (2) § 13(b)(i) by failing to reimburse Caldwell-Baker for patching leaks in some of the railcars' roofs at lease end; (3) § 4(d) by failing to pay late fees on Caldwell-Baker's cleaning costs; (4) § 4(d) by failing to pay late fees on Caldwell-Baker's roof-leak repair costs; and (5) § 5(c) by failing to pay for RFMX 464595. The court awards Caldwell-Baker a total of $40, 881.50 in damages on these five claims. The court also finds that Caldwell-Baker is contractually entitled to recover its attorneys' fees and litigation expenses, but only those incurred on these five claims. In addition, the court awards Caldwell-Baker $3, 584 in damages for Coshocton Grain's breach of the lease's forum-selection clause, for a total of $44, 465.50. On the rest of Caldwell-Baker's claims, the court finds for Coshocton Grain and against Caldwell-Baker.

         After providing a Table of Contents that summarizes this Decision's content, the court rules two evidentiary issues that it took under advisement when the trial concluded. The court then presents its findings of fact, followed by its analysis of Caldwell-Baker's claims.

         Table of Contents

         Evidentiary Rulings ....................................................................................................................... 5

         Findings of Fact .............................................................................................................................. 6

         I. The Terminology ................................................................................................................ 6

         II. The Operative Facts ........................................................................................................... 9

         How the Parties' Relationship Began ................................................................................. 9

         The Disagreement .............................................................................................................. 14

         The Litigation Begins ........................................................................................................ 15

         The Final Return ................................................................................................................ 16

         III. The Parties' Method for Handling Repairs and Costs During the Lease ................... 18

         IV. The Alleged Subleases ...................................................................................................... 19

         V. The Bench Trial and Subsequent Events ....................................................................... 21

         The Trial's Mechanics ........................................................................................................ 21

         The Witnesses .................................................................................................................... 22

         Analysis and Conclusions of Law ............................................................................................... 23

         I. Guiding Principles of Kansas Contract Law ................................................................. 27

         II. Forum-Selection Clause Claim ....................................................................................... 29

         A. CBC's Shifting Theories .............................................................................................. 30

         B. Attorneys' Fees That CBC May Recover ..................................................................... 32

         III. Sublease Provision Claims.. . ........................................................................................... 35

         A. Breach of Contract.. ..................................................................................................... 36

         B. Duty of Good Faith and Fair Dealing ........................................................................... 40

         IV. Return Condition Claims ................................................................................................ .41

         A. Section 13(b) ................................................................................................................ 42

         B. CBC's Theories of Liability and Damages .................................................................. 43

         1. What Exactly Does CBC Consider a Breach of § 13(b)? ................................. 43

         2. Overview of CBC's Claims Under § 13(b) ....................................................... 45

         C. Return Condition Claim ............................................................................................... 45

         1. Section 13(b)(i)'s First Sentence: “Specifications Previously Imposed” ........ 45

         a. Lessee Maintenance Items, Cleaning Costs, and Suitable for Grain Product Loading ................... 46

         i. Lessee Maintenance Items and Cleaning Costs ......................... 50

         ii. Suitable for Any Grain and Grain Product Loading .................. 59

         b. Corrosion ............................................................................................... 63

         c. All Damage ............................................................................................ 67

         i. Section 15 .................................................................................. 68

         ii. Section 17 .................................................................................. 71

         iii. Section 3(a) ............................................................................... 73

         iv. Combined Effect of § 15 and § 17 ............................................ 76

         d. Conclusion: “Specifications Previously Imposed” .............................. 76

         2. Section 13(b)(i)'s Second Sentence: Liability on Return Only ........................ 77

         3. Conclusion.. ...................................................................................................... 81

         D. Prior Damage Claim ..................................................................................................... 81

         1. Responsibility for Damage and Repairs During the Lease ............................... 82

         a. Section 6(b): “Good Working Order and Repair” ................................ 82

         b. Section 13(b)(i)'s Second Sentence, Again.. ........................................ 84

         2. Payment Deferred Until the Cars Are Returned ............................................... 84

         E. Extrinsic Evidence Would Not Alter the Court's Conclusions .................................... 86

         1. One Lease or Two? ........................................................................................... 87

         2. CBC's All-Damage, “Specifications Previously Imposed” Theory .................. 89

         3. CBC's All-Damage, Return-Condition Theory ................................................. 90

         4. CBC's Prior-Damage Theory ........................................................................... 94

         5. Conclusion.. ...................................................................................................... 95

         F. Lost Rent Claim ............................................................................................................ 95

         V. Insurance Provision Claims.. .......................................................................................... 97

         A. Failure to File Claims for Damage ............................................................................... 98

         B. Failure to Submit a Claim for the Derailment of RFMX 464595……… .................... 99

         C. Failure to Carry Insurance Continuously Throughout the Lease………….. ............. 99

         D. Failure to Produce an Insurance Certificate Annually ............................................... 101

         E. Failure to Name CBC as an Additional Insured ......................................................... 101

         F. Conclusion.. ................................................................................................................ 103

         VI. Indemnification Claims.. .............................................................................................. .103

         A. Theories of Indemnification ....................................................................................... 104

         1. Indemnification Under § 8 .............................................................................. 104

         2. Indemnification Under § 17 ............................................................................ 105

         B. Breach of Contract Claims ......................................................................................... 108

         VII. Derailed Car Claims ...................................................................................................... 108

         A. RFMX 464595's Derailment and Subsequent Events ............................................... 109

         B. Stipulated-Value Claim.. ........................................................................................... 111

         1. What Terms Control? ..................................................................................... 111

         2. Meeting of the Minds and Mistake.. ............................................................... 112

         3. Did Coshocton Breach § 5(c)?.. ..................................................................... 113

         4. Coshocton's Affirmative Defenses .................................................................. 114

         a. Waiver ................................................................................................. 114

         b. Equitable Estoppel .............................................................................. 116

         c. Set Off ................................................................................................. 117

         5. Conclusion ...................................................................................................... 118

         C. Pre-Judgment Interest Claim ...................................................................................... 118

         D. Lost-Rent Claim ......................................................................................................... 120

         E. Conclusion .................................................................................................................. 121

         VIII. Late Fee Provision Claims ............................................................................................. 121

         IX. Attorneys' Fees and Litigation Expenses ..................................................................... 123

         A. Attorneys' Fees and Expenses Under § 8 and § 17 .................................................... 124

         B. Attorneys' Fees and Expenses Under § 12(b).. .......................................................... 124

         X. CBC's Motion to Re-Open the Evidentiary Record ................................................... .127

         XI. Conclusion ....................................................................................................................... 127

         Appendix A.. ............................................................................................................................... .129

         Evidentiary Rulings

         Before the court can introduce the facts, it first must rule a few evidentiary objections still pending from the trial. Several times during trial, Coshocton Grain Company (“Coshocton”) objected to evidence as extrinsic or parol. E.g., Trial Tr. 225:1-226:12, 237:1-8, 398:20-24. The court delayed ruling on Coshocton's objections until it could determine whether extrinsic or parol evidence was admissible. E.g., Trial Tr. 225:1-226:12, 237:23-238:4. As the court explains below, it finds that the parties' contract is not, by and large, ambiguous. Indeed, the court finds the contract ambiguous in just one place: the meaning of the phrase “suitable for any grain and grain product loading” in § 6(c). The court relies on extrinsic evidence to answer this one question. So, with this one exception, the court effectively sustains Coshocton's objections to the extrinsic and parol evidence offered by Caldwell-Baker Company (“CBC”).

         But even a contrary ruling would not alter the outcome on any of CBC's claims. With due respect for the substantial effort that CBC and its counsel devoted to this case, the court has reviewed and considered all of CBC's offers of extrinsic evidence. Admitting this evidence would not change anything other than the length of this Decision.

         The court also left open one trial objection asserted by CBC. Trial Tr. 1435:22-1436:1. CBC objected to Coshocton's offer of a September 1996 deposition of Carle Baker Jr., arguing that the deposition was not relevant to the questions presented in this trial. Trial Tr. 1435:15-21. After reviewing the deposition, the court agrees with CBC. Mr. Baker's deposition testimony about an earlier railcar lease[1] that is not at issue here offers no facts of consequence to the outcome in this case and makes no fact more or less probable. Mr. Baker's 1996 deposition thus is not relevant. See Fed. R. Evid. 401; see also TMG Life Ins. Co. v. Ashner, 898 P.2d 1145, 1149 (Kan.Ct.App. 1995) (“As with all problems of interpreting or construing contracts, the facts of each case are of extreme importance; therefore, prior decisions are generally not controlling on questions involving different contracts . . . .”). The court thus sustains CBC's motion. With these evidentiary questions resolved, the court turns to the facts.

         But first, this case has so many moving parts that some background information is helpful. Indeed, CBC alone submitted more than 3, 900 pages of exhibits at trial. And, over the course of the five-day trial, the parties elicited nearly 1, 400 pages of testimony. So, even though the contract in dispute spans just 17 pages, the court is awash in evidence. To help make sense of all this evidence, the court begins by discussing a few terms that are awkward to define in a purely chronological narrative. The court then recites the events that led to this trial, beginning with the start of the parties' business relationship. The court concludes this section with a discussion of the bench trial's mechanics.

         Findings of Fact[2]

         I. The Terminology

         This case involves one particular segment of the railroad industry: railcar maintenance and repair. The participants in this market segment have drafted detailed guidelines outlining when certain repairs must be made to railcars, how those repairs must be made, and who must pay for them-though this last guideline may be altered by contract. These guidelines are memorialized, in part, by the Association of American Railroads' Interchange Rules. Those in the industry refer to this publication and its guidelines as “the AAR Rules, ” and so does the court. Several iterations of the AAR Rules exist. The court relies on the AAR Field Manual effective January 1, 2016, which the parties stipulated to and admitted as Exhibit 7.

         At trial, CBC called James Jennings to testify as an expert on the AAR Rules. Mr. Jennings serves as operations manager for The Andersons, Inc., a railcar repair shop in Kansas City, Missouri. It has operated out of its current location since September 2013, when it bought an existing railcar repair shop called Mile Rail. Trial Tr. 83:17-84:7. Work by both Mile Rail and The Andersons, Inc. plays an important role in this case.

         During his lengthy and detailed testimony, Mr. Jennings discussed the AAR Rules and provided the court with a crash course about how to apply the Rules. He explained that, although the Rules apply at all times, railcars often are inspected as they pass through interchange points.[3] Trial Tr. 138:14-139:8, 148:15-149:15. So, a railcar is inspected when it passes from one railroad company's tracks to another's tracks. See Trial Tr. 138:14-139:18, 148:15-149:15. And, it seems, an AAR rule exists for most components of a railcar, but not for all of them.[4] Where no component-specific rule exists, one still must examine a few general rules-mostly about safety-before determining that no AAR rule applies. Trial Tr. 173:25- 175:25. If a railroad inspects a railcar and finds that it has cause for attention under the AAR Rules-i.e., an AAR rule requires at least a closer inspection of some component-it “bad orders” the railcar. To bad order a railcar simply means that the railcar needs mechanical attention or repairs (as defined in the AAR Rules or the rules of a government agency). Ex. 5 at 1065. A bad ordered railcar may not run in service until it receives the required inspection or repairs. Id.

         Railroad companies, railcar owners, and lessees have several options for dealing with bad ordered railcars. One is sending a bad ordered railcar to a shop of the owner or lessee's choosing, often called a contract shop. Another option is for the owner or lessee to send a mobile crew-a crew of workers who move about repairing railcars-to fix the railcar. And, sometimes, railroad companies repair the railcar themselves. No matter which method is used, the repairing company drafts billing repair cards, called “BRCs” for short.[5] Id. at 1070.

         A BRC is a line-item report about the work performed on a railcar, with each line-item corresponding to a particular why-made code from the AAR Rules and a description of the repairs made. Id. at 1066; see also Ex. 203 at 1 (BRC for RFMX 464857 from The Andersons, Inc.). A “why-made code” is a two-digit numerical code that identifies why the repair was made. Ex. 5 at 1120. Why-Made codes usually correspond to a particular AAR rule, but some codes are more general. For instance, a why-made code of “25” discloses a repair made at the owner's request, and not because of an AAR rule. Trial Tr. 70:10-11. Similarly, a why-made code of “09” indicates that the repair was not linked to an AAR rule, but, instead, was necessary to make another repair. Trial Tr. 68:2-69:8, 154:2-13. These “09” repairs are called “associated repairs.” Trial Tr. 68:2-7, 154:2-4.

         Some of the invoices CBC admitted as evidence include the three-letter label “CSM” in the description accompanying a why-made code. E.g., Ex. 203 at 1 (BRC for RFMX 464857 from The Andersons, Inc.). “CSM” is an acronym for “customer supplied material.” Trial Tr. 861:7-11, 868:23-24. So here, the CSM designation discloses that CBC supplied the contract shop with the materials needed to complete the repair. This designation also discloses that the shop did not charge CBC for those materials.

         II. The Operative Facts

         How the Parties' Relationship Began

         CBC is a Kansas company engaged in the business of owning and leasing railcars. Coshocton is an Ohio company that buys, sells, and transports grain. In early 2010, Grant Baker of CBC cold-called Coshocton trying to interest the company in leasing some of CBC's railcars. Mr. Baker was passed to Scott Jones, an independent contractor who handled, among other things, Coshocton's railcars (or, “cars”). Eventually, Mr. Jones and Mr. Baker agreed on the number of cars Coshocton would lease, the rent charged per car per month, and how long the lease would last. Jones Dep. at 75:24-76:4. Mr. Baker reduced this agreement to a writing entitled “Railcar Lease Agreement” (“the Lease” or “the Lease Agreement”), which he drafted by adding these three agreed-to terms to CBC's boilerplate lease.[6] Mr. Baker relied on CBC's boilerplate lease for several reasons, but mostly because the Coshocton deal was his first and because CBC's President, Carle Baker-who happens to be Mr. Baker's uncle-gave the boilerplate lease to him.

         Carle Baker and Coshocton's Chief Executive Officer-Rhoda Crown-signed the Lease Agreement on March 10, 2010, and CBC officially leased 25 covered-hopper cars to Coshocton that Coshocton used to haul grain. A month later, Coshocton needed more railcars so the parties agreed to expand their contract. They signed Schedule A, which added five cars to the Lease but changing no other terms. Ex. 2. Coshocton used these 30 cars without incident for several months until October 27, 2010, when the Norfolk Southern Railroad accidentally derailed one of the cars. This car, designated as RFMX 464595, was completely destroyed.

         CBC contacted Coshocton after receiving word that a derailment had split RFMX 464595 in two. In an email dated October 28, 2010, Kathy Peck-CBC's office manager at the time- asked Ms. Crown to submit a claim to Coshocton's insurer for RFMX 464595's $25, 000 stipulated value because the derailment had caused $30, 000 worth of damage. Ex. 217 at 3. The next day, Ms. Crown wrote back, “I am confused about filing the claim. It is my understanding that the [Norfolk Southern Railroad] would submit [the loss] to their insurance company and pay you from their claim. Let me know.” Id. Ms. Crown was confused because, as it turns out, CBC and Coshocton interpreted sections 5(c) and 15 of the Lease differently. After Ms. Crown responded to Ms. Peck's email, the parties did not discuss the derailment again until December 6, 2010, when CBC sent Coshocton an invoice for the stipulated value of RFMX 464595. Id.

         When CBC's invoice arrived, Mr. Jones of Coshocton called Grant Baker to find out why CBC had sent it. Jones Dep. at 63:21-65:7; Trial Tr. 1360:12-14. Although Mr. Jones could not recall the exact words used during the phone call, he testified that he recalled telling Mr. Baker that if Coshocton was “subject to [$]25, 000 for each car, we can't be in the lease” (Jones Dep. at 66:17-19), and that Coshocton would have to return the cars if it was “subject to that kind of risk on each car” (id. at 67:5-6). Mr. Jones also asked Mr. Baker “to find out if there's anything else [Coshocton] could do” so that Coshocton did not have to back out of the Lease Agreement. Id. at 68:3-4. On December 31, 2010, sometime after this phone conversation, Mr. Jones sent Mr. Baker an email asking whether CBC had “ever resolve[d] the insurance issue on [RFMX 464595]?” Ex. 219. Mr. Baker responded by email four days later on January 3, 2011. He wrote:

We are not going to press the issue at this time. I would say we disagree with the language of the lease, but until an attorney would get involved over this I would just keep paying your rent on the 29 cars you have and [we] will deal with this at a later time. I'm not saying we are going to do anything. We just want to get along. We don't have a substitute car available right now but will keep a look out for one.

Id. Mr. Jones remembers a conversation with Mr. Baker after this email exchange. In that conversation, Mr. Baker said that CBC was “going to work with [Coshocton] on this and change the lease . . . so it would only apply on [Coshocton's] . . . tracks.” Jones Dep. at 70:18-19; id. at 69:23-71:3.

         About a month after Mr. Jones and Mr. Baker's email exchange, on February 15, 2011, the parties signed Schedule B1.[7] Schedule B1 added 75 more railcars to the Lease and extended it by 13 months. Ex. 4. And, Schedule B1 increased the monthly rent by $100 per car per month, though it is unclear whether rent increased on all 104 cars or just the 75 cars added by Schedule B1. Also, Schedule B1 added new language to the end of § 15 of the Lease. Based on the evidence presented at trial, the parties did not discuss the derailment of RFMX 464595 again after negotiating this new § 15. Trial Tr. 650:20-25. And CBC did not ask Coshocton for payment on this destroyed car again until it filed its Amended Counterclaim on October 30, 2015. Doc. 134-1.

         By their terms, the Lease and Schedule A concluded on July 31, 2012. Exs. 1, 2. On August 21, 2012, Mr. Jones and Mr. Baker began discussing how, when, and where Coshocton would return the 29 cars[8] coming off the Lease and Schedule A. Exs. 428, 419. On October 4, 2012, Mr. Baker sent Mr. Jones an email saying,

The cars will go off lease after the cars are inspected and fixed. And hatch cover or gate repairs will be at your expense. (if needed) if cars go into shop and do not need any gate or hatch cover repairs per our lease agreement we will take the rail cars off rent when they arrive at mile rail.

Ex. 419 at 1. The significant time-gap between the end of the Lease and Coshocton's actual return of the cars is common in the industry. Trial Tr. 660:4-662:12. This practice arises from economic expediency. When a company sends a loaded car down a railroad, the company gets something called a “free empty move, ” which is what it sounds like. Trial Tr. 660:23; Trial Tr. 660:18-662:12. A free empty move allows lessees like Coshocton to send a leased car on one last run when the car is unloaded at its destination, the lessee then uses its free empty move to return the car to the lessor for free. Section 13(c) of the Lease Agreement contemplated such a methodology. Ex. 1 at 10; Trial Tr. 1258:10-16.

         On January 9, 2013, Keaton Baker-Grant Baker's twin brother and the person in charge of railcar maintenance and repair at CBC-emailed Mr. Jones. He informed Mr. Jones that some of Coshocton's cars had made it back to CBC in Kansas City and that CBC would “start working on the[] cars next week.” Ex. 220 at 1. The email also informed Coshocton that CBC intended to “keep sending estimates and billing repair cards as [it] inspect[ed] more cars that [came] into Kansas City.” Id. Keaton Baker attached a document to his email describing Coshocton's estimated costs for the repair work, but neither party offered this attached document as evidence at trial.

         If everything had gone as planned, Coshocton would have returned the cars to Mile Rail (now, The Andersons, Inc.), Mile Rail would have performed any required or requested repair work on the cars, and Mile Rail then would have sent BRCs and invoices for that work to CBC. CBC then would have reviewed the billing documents and separated the costs that the Lease Agreement required CBC to pay from the costs that Coshocton was required to pay. Trial Tr. 1262:20-1263:2. Then, CBC would send Coshocton a new invoice for its share of the tab, as well as the invoice and BRCs provided by Mile Rail.

         Things did not go as planned. Coshocton returned the 29 cars to Mile Rail, but Mile Rail did not repair them in a timely manner. Trial Tr. 1117-18, 1257:5-7. Cars sat untouched for months and, sometimes, even years. Trial Tr. 840-42. This happened for many reasons, including the tank-car boom caused by the rise of fracking. The Andersons, Inc.'s acquisition of Mile Rail also slowed things. Id. Based on Keaton Baker's testimony, neither Mile Rail nor any other contract shop did any work on the cars. Trial Tr. 1117:16-17. So, CBC's mobile crew made all the repairs that CBC charged for in the invoices submitted to Coshocton. See Ex. 220 at 4-21 (invoices and BRCs for 16 of the Lease and Schedule A cars); see also Trial Tr. 1117:3-8, 1120:4-13 (Keaton Baker explaining that, for at least 16 of the 29 cars, CBC did all the repair work).

         The parties signed their second Schedule B-called Schedule B2 for clarity-on April 5, 2013. Ex. 3. Schedule B2 extended the termination date for the 75 cars first leased under Schedule B1 from August 31, 2013, to September 30, 2015. About four months later, on August 27, 2013, Grant Baker sent an email to Mr. Jones and Ms. Crown at Coshocton. Ex. 220 at 2. In his email, Grant Baker transmitted invoices and BRCs for “final repairs” to 16 of the 29 cars that Coshocton had returned earlier that year. Id. His email also informed Coshocton that he believed Coshocton “had 7 additional cars at the shop which w[ould] be repaired soon.” Id. The parties submitted the invoices and BRCs attached to this email as evidence. They show that Coshocton's final cost for the 16 cars was $19, 076, Id. at 4, an average cost per car of $1, 192. During closing argument, CBC conceded that the repairs to these 16 cars were limited to gates, hatch covers, and cleaning. Doc. 243 at 38:21-39:4. The evidence established that Coshocton paid these invoices. The parties did not include invoices for the other 13 returned cars.

         Another gap in the evidence follows late August 2013, and the parties seem to have coexisted peaceably for the next year. But an August 27, 2014 email from CBC ended the good times.

         The Disagreement

         On that date, Grant Baker dispatched an email to Ms. Crown announcing that CBC would “be pulling some or all cars from [Coshocton] that are deemed uneconomical for [CBC] to have in service.” Ex. 425. In effect, this message told Coshocton that CBC was going to take back at least some of the leased cars. Coshocton refused to return the cars and asked why CBC was trying to pull the cars more than a year before the Lease ended. Jones Aff. Ex. 74, at 6. In response, Mr. Baker explained that CBC was pulling the cars because the Lease entitled it to do so for any reason. Ex. 423. On October 3, 2014, just a few days later, Mr. Baker sent another email to Coshocton, this time asserting that CBC was pulling the cars to perform repair work required by AAR Rule 88. Ex. 422. Rule 88 requires car owners to make certain repairs and updates to cars when they turn 40 years old. Ex. 7 at 643, 658. Once Rule 88 repairs are made and certified, the 40 year-old cars may run in service for 10 more years. Trial Tr. 1144:1-6. Most, if not all, of the cars CBC had leased to Coshocton were nearly 40 years old when the Lease began. Trial Tr. 572:13-17.

         Coshocton's attorneys responded to CBC's announcement by sending a letter on October 15, 2014. This letter notified CBC that Coshocton did not interpret the Lease to permit CBC to pull cars for Rule 88 work and then “re-lease them to other parties in order to maximize its profits, which appears to be [CBC's] ultimate objective.” Ex. 84 at 2. Coshocton's suspicions about CBC's motives were confirmed. At some point, Coshocton learned that CBC had been given the chance to lease the Coshocton cars to two other companies for $275 more per car per month. The new potential lessees were Bella Logistics, LLC and Lansing Trade Group, LLC. Ex. 213 at 3; Ex. 214 at 3. After Coshocton's attorneys sent the October 15 letter, nothing happened for a brief period. Then, on November 3, 2014, CBC tried to divert 33 of the leased cars back to its control by changing their bills of lading from Roachdale, Indiana, to Kansas City. Jones Aff. Ex. 74, at 10. This attempt failed, and the cars headed for Roachdale, Indiana, as scheduled. Id.

         The Litigation Begins

         Seven days after CBC had tried to redirect the 33 cars to Kansas City, Coshocton went to court. It filed this lawsuit in the United States District Court for the Southern District of Ohio, seeking, among other things, a temporary restraining order and preliminary injunction forbidding CBC from pulling any cars out of the Lease. Docs. 1, 2. Because the Lease Agreement included a forum-selection clause, the Ohio court transferred the case to our court on November 20, 2014. Docs. 8, 9.

         Sometime in January 2015, three cars derailed on track that Coshocton controlled. One of the cars was destroyed and Coshocton paid to repair the other two. Coshocton filed a claim with its insurer and paid CBC $25, 000 for the destroyed car. But CBC never replaced the destroyed car so, after January 2015, only 74 cars remained in the Lease.[9]

         On January 6, 2015, this court ruled on Coshocton's request for a temporary restraining order and preliminary injunction. Docs. 41, 46. In his ruling, Judge Lungstrum held that the Lease Agreement entitled CBC to remove cars from the Lease, temporarily, to perform Rule 88 work. Doc. 46 at 251. After this ruling, Coshocton sent a number of emails to CBC asking where it should return the cars so that CBC could perform the Rule 88 work. E.g., Exs. 73, 184, 185, 188. But CBC never pulled any cars to perform Rule 88 work, or for any other reason.

         By this time, CBC had asserted a Counterclaim against Coshocton. Doc. 58. On February 9, 2015, Coshocton and CBC filed separate motions for summary judgment. Docs. 63, 65. After a hearing, Judge Lungstrum ruled both motions on March 17, 2015. Doc. 106; see also Doc. 110 (Judge Lungstrum's oral summary judgment rulings). The court will not recite all of the parties' summary judgment arguments or all of Judge Lungstrum's rulings. Instead, it mentions only those that are relevant to the issues here. Judge Lungstrum granted summary judgment in CBC's favor on its claim that Coshocton had breached the Lease Agreement's forum-selection clause by suing in Ohio. Doc. 110 at 16, 21-22. He also ruled that this breach constituted an Event of Default under § 12(a)(ii) of the Lease Agreement. Id. Judge Lungstrum did not decide whether this breach entitled CBC to recover damages. He also did not address “ultimate consequences” of this Event of Default because CBC had only asked for “summary judgment that [the forum-selection clause breach was] an event of default.” Id. at 22.

         The Final Return

         Although the litigation was ongoing-and volatile-the parties continued to honor the Lease Agreement until Schedule B2 expired by its terms on September 30, 2015. But Coshocton had started to return the remaining 74 cars as early as May 2015, apparently under a mutual agreement between the parties. Exs. 38, 39, 185. Then, at 1:17 p.m. on the day that Schedule B2 ended, CBC sent Coshocton an email. It asserted that CBC was “immediately repossessing and demanding immediate possession of the remaining railcars . . . per the default provisions” in § 12 of the Lease Agreement. Ex. 190. The evidence establishes that CBC did not take immediate possession of the cars or otherwise act to reclaim the cars after sending this email. So, Coshocton sent the cars on one last run and used its free empty move to return all the cars to CBC. Trial Tr. 706:24-707:8.

         CBC began sending Coshocton invoices for repairs to these cars in January 2016. Ex. 211. Those invoices billed Coshocton significantly greater amounts than the invoices CBC had sent back in 2013 when Coshocton returned the 29 cars leased under Schedule A. In January 2016 alone, CBC billed Coshocton for $483, 036 in repairs to 38 railcars. Ex. 211 (invoice numbers CG001, CG002, CG003, and CG004). So, for these 38 cars, the average repair cost to Coshocton was $12, 711-$11, 519 per car more than the average for the first 16 cars returned in 2013. And, of these January 2016 invoices, only one invoice asserts that it is billing Coshocton for repairs to cars.

         This increase in the amount billed manifests the parties' significant disagreement about how to interpret the Lease. Coshocton reads the Lease to make it financially responsible only for repairs to items that § 6(a) of the Lease defines as “Lessee Maintenance Items.” Ex. 1 at 4. Those items include “hatch covers (no patching), including batten arms, outlet gate and components thereof.” Id. On February 19, 2016, Coshocton's counsel contacted CBC's counsel, asking CBC to send revised invoices showing which charges in its invoices billed for Lessee Maintenance Items. Ex. 141. CBC's counsel refused to pass this request on to CBC. Id. Eventually, Grant Baker learned that Coshocton had requested revised invoices, Trial Tr. 1393:1-1394:2, but CBC never submitted any. See Trial Tr. 1141:10-1142:25 (Keaton Baker testifying that he has no record of when repairs to just Lessee Maintenance Items concluded); Trial Tr. 1392:18-1395:7 (Grant Baker testifying that he did not know the cost for just Lessee Maintenance Item repairs). Many, if not most, of the controversies ruled by this Decision arise from the amounts charged by CBC's unrevised invoices.

         III. The Parties' Method for Handling Repairs and Costs During the Lease

         During the life of the Lease, the parties handled repairs much like they handled repairs when Coshocton returned the first 29 cars back in January 2013. See Scott Jones Dep. 499:19- 500:16, 503:21-504:13, June 25, 2016 [hereinafter 2016 30(b)(6) Dep.] (discussing the parties' method of invoicing and reviewing invoicing for repairs made during the life of the Lease). When a car was bad ordered, either CBC or a contract shop made the necessary repairs and created the required BRCs. Then, if someone other than CBC had performed the repairs, the repairing party submitted an invoice and the BRCs to corroborate the amount invoiced to CBC. CBC then would sort out which charges were Coshocton's responsibility and create a new invoice listing only those charges. See, e.g., Ex. 430 (email from Grant Baker explaining CBC's view on its maintenance and repair responsibilities). CBC then would send Coshocton the new invoice and the BRCs to back it up.

         If Coshocton disagreed with how CBC had divided repair costs, the parties would confer and determine whether the invoice was correct. 2016 30(b)(6) Dep. at 497:24-498:4; Ex. 430. Indeed, Coshocton contested CBC's invoices for repairs several times during the Lease. 2016 30(b)(6) Dep. at 484:23-486:1, 497:18; see also Ex. 410 at 2-6 (green highlighting shown in original exhibit, identifying where CBC billed Coshocton, Coshocton protested, and CBC reduced invoice amounts); Ex. 430 (emails between Mr. Jones and Grant Baker where Mr. Jones contested repair costs under § 6(b) of the Lease Agreement and Mr. Baker responded that CBC agreed with his evaluation and thus reduced the invoice amount). For instance, CBC sent Coshocton an invoice for repairs to car number RFMX 464634 on March 21, 2012. Coshocton objected to some of the charges in this invoice. As Mr. Jones explained, he “objected to some of the items on [the invoice] because [he] didn't feel like they were items that pertained to top hatches and bottom slides, ” and that, because CBC “agreed with that, ” CBC sent Coshocton “a revised invoice on August 6th of 2012, ” for $1, 405 less than CBC's original invoice. 2016 30(b)(6) Dep. at 497:13-17; Ex. 410 at 2.

         IV. The Alleged Subleases

         Throughout the life of the Lease, Coshocton let other companies use some of the cars it had leased from CBC. The parties disagree whether all of Coshocton's arrangements with other companies constituted subleases. CBC contends that they do, and so Coshocton improperly subleased the cars to four companies: Lansing, Gavilon, Cargill, and Archer Daniels Midland (“ADM”). Coshocton concedes that its arrangement with three of those companies-Gavilon, Cargill, and Lansing-amounted to subleases. Jones Dep. at 258:5-11, 302:23-303:4. But it disputes that its arrangement with ADM was a sublease. Id. at 259:5-17, 306:18-23; Jones Aff. Ex. 74, at 9.[10]

         The record contains little information about the purported subleases. Indeed, the court has no evidence about how many cars went to Gavilon or when that sublease occurred. See Jones Dep. at 258:5-11, 259:5-260:2. Likewise, the court has little or no information about the dates or terms of the other alleged subleases. Based on Exhibits 83 and 430, it appears that Lansing used Coshocton's leased cars at least three times: June 2010 through July 2010; June 2011 through July 2011; and several times during 2013. And an email from Grant Baker shows that CBC knew about Coshocton's arrangement with Lansing in February 2013. Ex. 430. Exhibit 83 also shows that Cargill used Coshocton's leased cars between January 2013 and February 2013. As for ADM, the record is far less definite. Coshocton concedes that it allowed ADM to use some of the leased cars starting in August 2014. Ex. 85 at 6-7. And the record shows that ADM used the cars through November 2014. Jones Aff. Ex. 74, at 9-11. But the record altogether is silent about whether ADM used the cars past November 2014.

         One thing is certain about these arrangements, however. CBC knew about some of the subleases before Judge Lungstrum issued his Preliminary Injunction Order. Trial Tr. 1325:23- 1326:2; see also Doc. 46 at 249-50 (discussing some of the alleged subleases on January 13, 2015). So, CBC knew of these subleases no later than January 6, 2015-eight months before the end of the Lease. Docs. 41, 46. Indeed, CBC knew about the ADM arrangement by November 3, 2014, because both Ms. Peck and Carle Baker called ADM about CBC's cars on that date. Jones Aff. Ex. 74, at 10. But, CBC never called an Event of Default under the Lease Agreement, and never tried to repossess the cars or terminate the Lease Agreement because of the subleases.

         During the periods covered by the alleged subleases, Coshocton paid CBC the required rent for the cars and reimbursed CBC for any repairs made to the cars. See Trial Tr. 669:13-19 (Ms. Crown testifying that Coshocton “would have paid” every bill received from CBC during the alleged subleases). No evidence suggests that Coshocton failed to pay CBC for any losses incurred during the alleged subleases or that any of the putative sublessees breached the Lease Agreement. See Trial Tr. 1401:1-16 (Grant Baker testifying that CBC has no knowledge of a breach by any sublessee).[11]

         V. The Bench Trial and Subsequent Events

         The Trial's Mechanics

         When the Lease Agreement expired on September 30, 2015, the claims in Coshocton's Complaint became moot. But CBC's Counterclaim remained. On November 1, 2016, the court began a bench trial to resolve CBC's counterclaims. The parties presented their cases over five days. CBC called five witnesses. Coshocton called none.

         After the evidence concluded, the court hoped to receive a coherent explanation of the real issues and the parties' positions on them. So, the court postponed closing arguments until it could have the benefit of the parties' proposed findings of fact and conclusions of law. To help clarify the issues, the court issued an Order explaining how CBC and Coshocton should structure their proposed findings. Doc. 224. This Order required CBC to “present individually targeted Proposed Findings of Fact and Conclusions of Law for each category of damage it seeks to recover” and explained that “[e]ach such category of damage must have its own separate heading.” Id. at 2 (footnote omitted). The Order also required Coshocton to use the same format in its response. Id. at 3-4. This Decision often refers to various sections of the parties' proposed findings.

         In the same post-trial Order, the court allowed CBC 14 days to supplement the trial evidence “with evidence of attorneys' fees purportedly recoverable under the parties' agreement.” Id. at 1. But it “strictly limited” CBC's submissions to “fees purportedly incurred during the period June 1, 2016 to October 31, 2016.” Id. CBC filed supplemental evidence of attorneys' fees on November 18, 2016 (Doc. 226), and on November 19, 2016 (Doc. 227). CBC filed its Proposed Findings of Fact and Conclusions of Law (“CBC's Proposed Findings”) on December 16, 2016. Doc. 233. Coshocton filed its Proposed Findings of Fact and Conclusions of Law (“Coshocton's Proposed Findings”) on January 17, 2017. Doc. 234. The parties presented closing arguments two months later.

         But, about a month before closing arguments, CBC filed a Motion to Re-Open the Evidentiary Record. Doc. 237. In this motion, CBC asked the court to re-open the evidence so that it may submit attorneys' fees records for time spent on the case after October 31, 2016. Id. at 1. The issues in CBC's motion are tied to the court's conclusions here. The court thus resolves CBC's Motion to Re-Open the Evidentiary Record at the end of this Decision.

         The Witnesses

         In this final section of the facts, the court briefly discusses a few of the witnesses who testified at trial-and one who didn't. It does so because the court has had to make some credibility determinations that this Decision should report. But the court also engages in this discussion to explain whose testimony properly is before the court.

         Most of the people introduced in the factual narrative testified at trial, but three key players did not: Scott Jones, Kathy Peck, and Carle Baker. The court admitted no testimony from Ms. Peck or Mr. Baker, but it did admit testimony from Mr. Jones through his affidavit and several depositions. The court relies on testimony from all of these sources, and need not resolve any objections to do so.

         Few of the witnesses lacked a clear bias, but to the extent that Keaton Baker's testimony is not consistent with Grant Baker's testimony, the court finds Keaton Baker's testimony more credible. Although CBC's counsel led his witnesses most of the time, Keaton Baker resisted the leading questions from his company's counsel more readily than did his brother.[12] Moreover, the court found Grant Baker's testimony evasive when he was cross-examined by adverse counsel and this too harmed his credibility. In contrast, Keaton Baker's behavior on cross-examination did not impair his credibility.[13]

         The discussion to date leaves one witness from the trial unintroduced-Larry Koelzer. Mr. Koelzer has worked in the railroad business for many years and currently serves as a consultant for railcar owners and lessees. Coshocton hired Mr. Koelzer to help with its return of the final 74 cars. At trial, though, CBC, not Coshocton, called Mr. Koelzer to testify as an expert witness. Mr. Koelzer testified about the railroad industry and his interpretation of the Lease Agreement. The court does not recite his interpretation here nor rely on it in its discussion below. The interpretation of an unambiguous contract is a legal question reserved for the court. Waste Connections of Kan., Inc. v. Ritchie Corp., 298 P.3d 250, 265 (Kan. 2013). So, testimony like Mr. Koelzer's is relevant only when the court finds that a contract is ambiguous, which it does not find here. See Westar Energy, Inc. v. Wittig, 235 P.3d 515, 530-31 (Kan.Ct.App. 2010). However, Mr. Koelzer's testimony explaining certain terms used in the railroad industry assisted the court's understanding of some Lease provisions.

         Analysis and Conclusions of Law

         CBC contends that Coshocton breached seven sections of the Lease Agreement, entitling CBC to recover nine categories of damages. The seven sections Coshocton allegedly breached are: (a) § 18(i), the forum-selection clause; (b) § 18(b), the subleasing provision; (c) § 13, the return provisions; (d) § 15, the insurance provision; (e) (§ 8 and § 17, the indemnification provisions; (f) § 5(c), the derailment provision; and (g) § 4(d), the late fee provision. The nine damage categories include direct and consequential damages claimed under the seven breaches alleged, as well as pre-judgment interest and attorneys' fees and litigation expenses. In total, CBC seeks $2, 470, 076 in damages and pre-judgment interest, and $643, 403 in attorneys' fees and litigation expenses. Altogether, then, CBC asks the court to award it $3, 113, 480.

         For each alleged breach and category of damage, CBC advances a labyrinth of claims and arguments. Some complicate the case, making it difficult to discern which claims turn on the outcome of others and which claims function independently. Other claims twist the ordinary meaning of the English language and, when they do, impair the credibility of CBC's other arguments. The written word was conceived as a means to make our intentions clear-not to hide it from others.[14] Before the court begins its analysis of the parties' claims, it addresses three over-arching issues.

         First, the court explains how CBC may recover under the Lease Agreement. The Lease does not include a liquidated damages clause, so any recovery under the Lease must be based on general principles of contract damages. Section 18(i) of the Lease selects Kansas law to govern any dispute, and neither party ever asserts that any provision of Kansas's Uniform Commercial Code applies to their dispute. So the court bases its findings and conclusions on Kansas's common-law contract rules.[15]

         Second, CBC tries to recover on six claims and categories of damage that it did not raise or preserve in the Pretrial Order. Those six claims and categories are:

1. Attorneys' fees in the amount of $194, 661 for costs incurred between November 10, 2014, and when the date judgment is entered, based on Coshocton's alleged breach of the forum-selection clause, compare Doc. 233 at 2, with Doc. 165 at 8;
2. Lost-rent damages in the amount of $203, 000 for Coshocton's alleged breach of § 15, compare Doc. 233 at 33, with Doc. 165 at 4, 10-11;
3. Lost-rent damages in the amount of $203, 000 for Coshocton's alleged breach of § 8 and § 17, compare Doc. 233 at 76, with Doc. 165 at 6, 23;
4. Lost-rent damages in the amount of $17, 800 for Coshocton's alleged breach of the Lease's indemnification provisions based on Coshocton's failure to pay for derailed car, RFMX 464595, compare Doc. 233 at 76, with Doc. 165 at 6, 23;
5. Attorneys' fees and damages based on a new claim that, by “subleasing the railcars and failing to obtain the required subleasing terms, ” Coshocton breached § 8 of the Lease, compare Doc. 233 at 27, with Doc. 165 at 8; and
6. Attorneys' fees and damages based on a new claim that Coshocton breached the duty of good faith and fair dealing when it failed to carry the insurance required by § 15, compare Doc. 233 at 48, with Doc. 165 at 10-11.

         CBC's efforts to insert these six claims contradict the Federal Rules of Civil Procedure.

         Those rules provide that the pretrial order “controls the course of the action unless the court modifies it.” Fed.R.Civ.P. 16(d). So, “claims, issues, defenses, or theories of damages not included in the [final] pretrial order are waived even if they appeared in the complaint.” Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002). When considering whether a claim is included in the pretrial order, courts must construe the pretrial order liberally “to cover any of the legal or factual theories that might be embraced by [its] language.” Zenith Petroleum Corp. v. Steerman, 656 F.App'x 885, 887 (10th Cir. 2016) (quoting Trujillo v. Uniroyal Corp., 608 F.2d 815, 818 (10th Cir. 1979)). The court construes “pretrial orders most liberally when the orders state the parties' claims in general terms.” Leathers v. Leathers, 856 F.3d 729, 761 (10th Cir. 2017) (citations omitted).

         CBC did not preserve any of these six claims or theories of damages. The Pretrial Order here is quite detailed and CBC, alone, drafted the portions of it devoted to stating CBC's claims. See Doc. 190 at 4 (incorporating CBC's previous filing, Doc. 165-titled, “Statement of Contentions”-as CBC's portion of the Pretrial Order). Yet nothing in the Pretrial Order could have prepared Coshocton, or the court, for these six new claims. CBC's final Amended Counterclaim never mentions claims one, three, five, and six, and, other than a stray sentence or two, it does not mention claims two and four either. Indeed, CBC raised precisely none of these claims or theories of damages until after trial, when CBC submitted its Proposed Findings.

         “‘[T]he primary purpose of pretrial orders is to avoid surprise by requiring parties to “fully and fairly disclose their views [about] what the real issues of the trial will be.”'” Leathers, 856 F.3d at 761 (quoting Zenith Petroleum Corp., 656 F.App'x at 887). Allowing CBC to assert these six claims now would undermine this purpose. The court thus concludes that CBC failed to preserve the six claims or theories of damages in the Pretrial Order. Cf. Arias v. Pacheco, 380 F.App'x 771, 775-76 (10th Cir. 2010) (affirming district court's decision not to allow a plaintiff to raise a wrongful-arrest claim where the plaintiff's first mention of the claim after one reference in the complaint was its proposed jury instructions).

         Although CBC never concedes that these six claims or theories of damages are new, the court elects to construe their inclusion in CBC's Proposed Findings as an implied request to amend the Pretrial Order. “The court may modify the [final pretrial] order . . . only to prevent manifest injustice.” Fed.R.Civ.P. 16(e); Arias, 380 F.App'x at 774. CBC thus “bears the burden of proving manifest injustice would occur without permitting the requested amendment[s].” Arias, 380 F.App'x at 774 (citing Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000)). CBC fails to carry this burden. It offers no reason why leaving the Pretrial Order as it is would produce manifest injustice. Indeed, CBC has had more than enough opportunities to amend its claims. The court thus declines to modify the Pretrial Order and so finds against CBC on the six claims listed above.

         Last, CBC includes a request for all of its attorneys' fees and litigation expenses- $643, 403 altogether-based on all of its breach claims except one. Because CBC seeks fees and expenses as a prevailing party under the Lease and not as compensatory damages for any particular breach, the court considers CBC's fees and expenses request near the end of this Decision-and not as part of its discussion of each claimed breach.

         With that, the court turns to the contract law principles that govern this case and then considers CBC's claims in the following sequence: (a) forum-selection clause; (b) subleasing provision; (c) return provision; (d) insurance provision; (e) indemnification provisions; (f) derailed car provision and pre-judgment interest; (g) late fee provision. The court then addresses CBC's claim for attorneys' fees and litigation expenses. This Decision then concludes by ruling CBC's Motion to Re-Open the Evidentiary Record (Doc. 237).

         I. Guiding Principles of Kansas Contract Law

         Under Kansas law, “[t]he elements of a breach of contract claim are: (1) the existence of a contract between the parties; (2) sufficient consideration to support the contract; (3) the plaintiff's performance or willingness to perform in compliance with the contract; (4) the defendant's breach of the contract; and (5) damages to the plaintiff caused by the breach.” Stechschulte v. Jennings, 298 P.3d 1083, 1098 (Kan. 2013) (citations omitted).

         “The primary rule for interpreting written contracts is to ascertain the parties' intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction.” Waste Connections, 298 P.3d at 264 (quoting Osterhaus v. Toth, 249 P.3d 888, 896 (Kan. 2011)). “If, on the other hand, the court determines that a written contract's language is ambiguous, extrinsic or parol evidence may be considered to construe it.” Id. (first citing Barbara Oil Co. v. Kan. Gas Supply Corp., 827 P.2d 24, 35 (Kan. 1992); then citing Mobile Acres, Inc. v. Kurata, 508 P.2d 889, 894-95 (Kan. 1973)).

         That the parties to a contract disagree about what it means does not render the contract an ambiguous one. Id. at 265. “To be considered ambiguous, a written contract ‘must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language.'” Infinity Energy Res. v. St. Paul Fire & Marine Ins. Co., No. 12-2685-JTM, 2013 WL 3792899, at *6 (D. Kan. July 19, 2013) (quoting Gore v. Beren, 867 P.2d 330, 337 (Kan. 1994)). So, a contract is ambiguous if “the language of the contract's provisions is capable of ‘one of two or more meanings.'” Graphic Tech., Inc. v. Pitney Bowes Inc., 968 F.Supp. 602, 607 (D. Kan. 1997) (quoting Simon v. Nat'l Farmers Org., Inc., 829 P.2d 884, 885, 888 (Kan. 1992)). But, a contract is not ambiguous “until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.” Liggatt v. Emp'rs Mut. Cas. Co., 46 P.3d 1120, 1125 (Kan. 2002) (quoting Catholic Diocese of Dodge City v. Raymer, 840 P.2d 456, 459 (Kan. 1992)). If the court finds a contract ambiguous after giving it “a fair, reasonable, and practical construction, ”[16] then “the facts and circumstances surrounding the execution of the agreement become necessary to the interpretation of its meaning.”[17]

         If, after applying the ordinary rules of interpretation the contract is still ambiguous, the court can resort to the rule that ambiguities are construed against the drafter. First Nat'l Bank of Olathe v. Clark, 602 P.2d 1299, 1303 (Kan. 1979). The same rule applies to arguments based on the parties' course of performance or dealing. The court may resort to these indicators of the parties' intent only after it has determined that the contract is ambiguous. See Id. at 1304 (“In construing an ambiguous or indefinite contract, the court ‘may also take into consideration the interpretation placed upon the contract by the parties themselves.'” (citation omitted)). Moreover, “[i]f a written contract is actually ambiguous concerning a specific matter in the agreement, facts and circumstances existing prior to and contemporaneously with its execution are competent to clarify the intent and purpose of the contract in that regard, but not for the purpose of varying and nullifying its clear and positive provisions.” Id. (quoting Weiner v. Wilshire Oil Co. of Tex., 389 P.2d 803, 808 (Kan. 1964)); accord Williams v. Alumni Ass'n of Univ. of Kan., 189 P.3d 580, 2008 WL 3367599, at *5 (Kan.Ct.App. Aug. 8, 2008) (per curiam).

         II. Forum-Selection Clause Claim

         In its first claim, CBC seeks attorneys' fees for Coshocton's breach of the Lease Agreement's forum-selection clause. In the Pretrial Order, CBC calls this claim “forum attorney fees.” Doc. 165. The court also adopts this naming convention.

         Coshocton filed this case in the Southern District of Ohio on November 10, 2014. Doc. 1. On November 12, 2014, CBC filed a motion to dismiss or transfer the case to the District of Kansas. Doc. 5. CBC based its transfer motion on the Lease Agreement's forum-selection clause in § 18(i), titled “Applicable Law.” Ex. 1 at 13. It reads as follows:

The terms of this Lease and all rights and obligations hereunder shall be governed by the laws and venue of the State of Kansas without regard to Kansas' choice of law doctrine. There are words and phrases herein that are railroad terminology defined by the Car and Locomotive Cyclopedia (1997) dictionary published by Simmons-Boardman.

Id. Six days after CBC filed its motion, the Ohio court denied the motion to dismiss but granted the motion to transfer. Doc. 8. The transfer was completed on November 20, 2014, when the Clerk of our court docketed the case here. Doc. 9.

         On February 9, 2015, CBC filed a motion for summary judgment. It argued, among other things, that Coshocton was liable for breaching the Lease's forum-selection clause. Doc. 63. On March 17, 2015, Judge Lungstrum granted CBC summary judgment on the forum-selection liability issue, but he did not decide damages. Doc. 110 at 16, 19, 21-22. CBC thus had to prove any recoverable damages caused by this breach at trial.

         Throughout this case, CBC has invoked a variety of theories to support its damages efforts. These shifting theories have complicated CBC's endeavor to prove its damages. The court thus begins by sorting out CBC's theories, then addresses whether CBC should recover the damages it seeks.

         A. CBC's Shifting Theories

         In its Proposed Findings, CBC seeks forum attorney fees under sections 8, 12(b), and 17 of the Lease. Doc. 233 at 2-3. But CBC relied on just § 12(b) in the Pretrial Order. Doc. 165 at 7. Though one could argue that Fed.R.Civ.P. 16(d) prohibits CBC from now asserting claims under § 8 and § 17, the court does not consider the rule so restrictive. The court thus considers CBC's forum attorney fees claim under all three provisions invoked by CBC.[18]

         Sections 8 and 17 do not entitle CBC to the damages it seeks. Neither provision's plain language can support a claim for attorneys' fees based on a breach of the forum-selection clause. Section 8 explicitly provides that it is only concerned with liability “arising out of . . . the loading and/or shipping in the Cars of commodities which cause oxidative corrosion.” Ex. 1 at 5. Where Coshocton filed suit has nothing to do with corrosion. Section 17 is equally disconnected to CBC's forum attorney fees claim. This provision explicitly states that it only is concerned with “any Car” subject to the Lease. Id. at 11. Coshocton's decision to sue in Ohio does not affect “any ...


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