United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. DISTRICT SENIOR JUDGE
contractual dispute action is over the instrumentation and
electrical (“I&E”) services provided by the
plaintiff/counterclaim defendant Panel Specialists, Inc.
(“PSI”) in the construction of a natural gas
processing plant owned by the defendant/counterclaim
plaintiff Tenawa Haven, LLC (“Tenawa”). This
court filed an order on December 28, 2018, (ECF# 135)
deciding the parties' pending dispositive motions. Tenawa
has filed a motion to reconsider. ECF# 136. It asks the court
to reconsider the denial of its motion for partial summary
judgment and cure what it argues is an “internal
inconsistency” in the court's findings by granting
summary judgment to it. ECF# 136, p. 1. The court finds no
such inconsistency and denies Tenawa's motion for the
reasons stated herein.
the order denying Tenawa's summary judgment motion was
neither dispositive nor a final judgment, D. Kan. Rule 7.3(b)
is applicable and requires a motion to reconsider be based
on: “(1) an intervening change in controlling law; (2)
the availability of new evidence; or (3) the need to correct
clear error or prevent manifest injustice.”
“Thus, a motion for reconsideration is appropriate
where the court has misapprehended the facts, a party's
position, or the controlling law.” Servants of
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2004).
A motion to reconsider is not the losing party's
opportunity to rehash arguments already addressed and
rejected, “to make its strongest case[, ] or to dress
up arguments that previously failed.” Voelkel v.
GMC, 846 F.Supp. 1482, 1483 (D. Kan.),
aff'd, 43 F.3d 1484 (10th Cir. 1994). A decision
on a motion to reconsider is committed to the court's
“considerable discretion.” Brown v.
Presbyterian Healthcare Servs., 101 F.3d 1324, 1332
(10th Cir. 1996), cert. denied, 520 U.S. 1181
moving for summary judgment, Tenawa asked the court to
enforce PSI's 2013 published price list as constituting
the governing schedule of rates under the Master Service
Agreement (“MSA”) which was never properly
modified, superseded, or replaced according to the MSA's
terms. The motion also sought a finding that Tenawa never
received written notice of PSI's rate increase and never
gave its written approval of a rate increase. Based on these
findings and conclusions, Tenawa wanted the court to apply
the 2013 published price list as a schedule of rates and
thereby reduce PSI's claimed damages by $244, 096.16.
court denied both parties' summary judgment motions on
this very issue and found “a question of material fact
over whether there was an agreement that this published price
list would constitute a schedule of rates for the life of the
project.” ECF# 135, p. 36. It did so only after fully
describing the parties' competing evidence and arguments.
The court emphasized that, “[t]he parties'
performance under the MSA does not definitively point to a
shared understanding about the intended purpose and effect of
the 2013 published price list.” Id. Earlier in
the order, the court referenced this price list and observed,
“[t]he parties' understandings differ over this
price list's purpose, effect and operation.”
Id. at p. 5. In short, the court found the
parties' testimony over their understanding of this
provision to be conflicting and the parties' evidence of
their performance under the MSA as not resolving their
disputed understandings. The court also expressed:
There is no direct evidence from 2013 or 2014 that they [the
parties] discussed and reached an understanding about this
published price list constituting a schedule of rates binding
under the MSA and subject to its Section Six provisions on
Method and Time of Payments. At best, there are only arguable
and competing inferences to be drawn from the ticketing,
invoicing, reviewing and approving of tickets without
objection, and auditing rights under the MSA.
The parties' purchase order in December of 2013 merely
grouped together all of PSI's 2013 submissions, including
the price list, and referred to them as the, “Earlier
Budgetary Estimate dated 12/7/13.” ECF# 104-1, p. 10.
And before PSI began its actual construction work on the
Project site, Tenawa requested from PSI an updated estimate
in July of 2014. PSI provided the updated estimate that
increased the total cost of its work by more than 40%. Tenawa
simply responded, “looks good.” The parties'
conduct does not reveal much of a shared understanding about
the purpose and effect of these “estimates” and
the documents submitted in support of them. The sides differ
on whether PSI's original or updated submission is
controlling, but they call both “estimates.”
Tenawa would have the original estimate be a “schedule,
” and PSI would have both estimates be no more than
“bids.” Because the MSA does not specifically
address “estimates, ” because the parties
genuinely dispute how their dealings were intended to be
covered by the MSA, and because there are credibility issues
raised as to the parties' testimony and affidavits on
this issue, the court denies summary judgment for both sides.
ECF# 135, pp. 36-37.
moving for reconsideration, Tenawa believes the court made
two findings that compel a summary judgment ruling in
Tenawa's favor on this issue. The first finding is that
the parties did not amend the MSA and did not follow the
MSA's terms for changing a schedule of rates. ECF# 135,
p. 8. The second finding is that, “the Bergerons'
testimony certainly supports a finding that they believed the
price list was controlling when the MSA was executed, . . .
.” Id. at 36. Tenawa essentially contends that
there was not enough evidence to disagree with the
Bergerons' testimony and with Ameringer's testimony
as to require submission to the jury. In short, Tenawa wants
the court to weigh the evidence and decide the dispute by
concluding that the 2013 published price list could be
nothing else than a schedule of rates under the MSA. Summary
judgment standards preclude this result.
arguments show no internal inconsistency in the court's
reasoning. The court never found that the 2013 published
price list constituted a schedule of rates under the MSA and
that conclusion is not compelled by the court's two
findings cited above. In summarizing the Bergerons'
testimony about the purpose and force of the 2013 published
price list, the court did not use “controlling”
as equating with a “schedule of rates.” Rather,
the court used “controlling” as arguably
consistent with PSI's position that the price list's
effect was not fixed by the MSA's terms but by the
ongoing practices of updating, bidding or estimating
practices evidenced in this transaction. The court's
summary judgment order sets out the competing evidence and
inferences creating a genuine issue of material fact over the
parties' understanding of the purpose and effect of the
2013 published price list. Finally, this genuine issue of
material fact is not inconsistent with the court's
findings that the MSA was not amended and that the parties
did not follow Section 6 of the MSA. Nothing argued in
Tenawa's memoranda seeking reconsideration persuades this
court that its findings support only one conclusion, that is,
the 2013 published price list was what the parties jointly
understood to be the governing schedule of rates under the
MSA. Tenawa argues it defies “common sense” for
the parties to have a MSA without settling such a key term as
the schedule of rates. If so, then common sense is also
subject to question over why the parties did not label or
designate the price list as a schedule of rates, did not
confirm the price rates when the significantly higher 2014
estimate was submitted, and did not enforce the price rates
during the actual performance of the contract. The
court's analysis and findings in its summary judgment
order are more than sufficient to sustain a genuine issue of
material fact over the parties' intentions concerning
this published price list.
THEREFORE ORDERED that Tenawa's motion to reconsider
(ECF# 136) the court's ruling (ECF# 135) denying
Tenawa's Motion for Partial Summary Judgment to Enforce
Plaintiff's Published Price List (ECF# 110) is granted
insofar as the court has reconsidered its ruling ...