KPRS Hawaii Construction, Inc. v. Big Island Electric, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
KPRS HAWAII CONSTRUCTION, INC.,
Plaintiff/Counterclaim
Defendant,
vs.
BIG ISLAND ELECTRIC, INC.,
Defendant/Counterclaimant.
Civil No. 24‐00106 MWJS‐KJM
ORDER DENYING COUNTERCLAIM
DEFENDANT KPRS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT [DKT.
NO. 73] AND DENYING DEFENDANT
BIE’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 77]
INTRODUCTION
In early 2022, KPRS Hawaii Construction, Inc. (KPRS) and Big Island Electric,
Inc. (BIE) agreed that BIE would perform electrical work on a large construction project
KPRS was overseeing on Hawai‘i Island. To that end, they inked a subcontract
agreement that outlined the scope of the work BIE would perform and the
compensation it would receive, established a schedule for the work to be completed,
and provided procedures for KPRS to terminate the contract either for cause or
convenience. By the latter half of 2023, though, the relationship had fallen apart, and
this litigation followed: KPRS sued BIE, and BIE responded with a counterclaim against
KPRS.
Now, in advance of trial, the parties have filed cross‐motions for partial
summary judgment, each contending they should prevail on certain claims as a matter
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of law. Because the court concludes that there are genuine disputes of material fact that
must be resolved at trial, the motions are DENIED.
BACKGROUND
A. 	Factual Background
1. 	KPRS and BIE Enter into a Contractual Relationship
There is no dispute that on January 20, 2022, KPRS and BIE entered into a
Subcontract Agreement under which BIE agreed to perform electrical work on a project
involving the construction of a 10,000 square foot building known as the “Kona Farm
Coffee and Distillery.” See Dkt. No. 78, at PageID.740 (BIE’s Concise Statement of Facts
(CSF) at ¶ 1); see also Dkt. No. 85, at PageID.1072 (KPRS’ Response to BIE’s CSF at ¶ 1)
(“Admit”). The Subcontract Agreement lists KPRS as the general contractor and BIE as
the subcontractor. It calls for KPRS to pay BIE $2,468,952 for “satisfactory performance”
of the agreed‐upon work. Dkt. No. 78‐3, at PageID.751 (Ex. A to BIE’s CSF). It defines
the “scope of work,” sets a “schedule of work,” and emphasizes that “[t]ime is of the
essence.” Id. (capitalizations omitted). And it includes, as Exhibit A to the Subcontract
Agreement, a separate Subcontract Master Agreement. Id. at PageID.794–831.
That Subcontract Master Agreement, in turn, authorized KPRS to terminate the
contract in either of two ways:
First, § GC‐42 of the Subcontract Master Agreement authorized KPRS to
terminate the contract “for default.” Under this provision, BIE would be “considered in
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default of its contractual obligations” if, among other things, it were to “[a]bandon[] or
refuse[] to proceed with any of the [w]ork” or “[f]ail[] to fulfill or comply with any of
the terms” of the agreement. Dkt. No. 78‐3, at PageID.814. And if KPRS wished to
“terminate the SUBCONTRACT for [such] default,” KPRS would have to “notify” BIE
“in writing of the nature of the failure” and of KPRS’ “intention to terminate” the
agreement “for default.” Id. If, after seven “calendar days from receipt of notification,”
BIE did not “cure of [sic] such failure,” then KPRS could through further “written
notice” to BIE, “terminate in whole or in part” BIE’s “right to proceed with the [w]ork.”
Id. at PageID.814–15. Once this further notice was provided, BIE would be required to,
among other things, “[i]mmediately discontinue work on the date and to the extent
specified in the notice.” Id. at PageID.815.
Second, § GC‐43 of the Subcontract Master Agreement authorized KPRS to
“terminate for convenience any of the [w]ork under this SUBCONTRACT, in whole or,
from time to time, in part, at any time by written notice” to BIE. Id. To rely on this
provision, KPRS’ “written notice” would have to “specify the extent to which the
performance of the [w]ork is terminated and the effective date of such termination.” Id.
And here again, “[u]pon receipt of such notice,” BIE would be required to, among other
things, “[i]mmediately discontinue the [w]ork on the date and to the extent specified in
the notice.” Id.
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2. 	The Contractual Relationship Breaks Down
There also is no dispute that by the second half of 2023, the relationship between
KPRS and BIE had broken down. But the parties do not agree on much else.
As BIE sees it, “[i]n October 2023, KPRS demanded that BIE stop work and
arbitrarily ordered BIE to vacate the construction project without a single written notice
or opportunity to cure.” Dkt. No. 77‐1, at PageID.714. And while BIE recognizes that
the Subcontract Master Agreement authorized KPRS to terminate the agreement for
default or for convenience, BIE contends that KPRS did neither—because it failed to
provide adequate written notice identifying problems that might be cured, failed to give
a seven‐day waiting period for possible cure, and failed to provide written notice that
KPRS was indeed exercising its right to terminate the agreement, let alone identifying
the effective date of any such termination.
KPRS, for its part, alleges that “it was immediately apparent that there were
problems” from the moment BIE “began work on the Project” in late 2022. Dkt. No. 1,
at PageID.4. KPRS represents that in August 2023, the owner of the construction project
visited the site and “was amazed at how little progress had been made on [the] scope of
work” that BIE had contracted to perform. Dkt. No. 86, at PageID.1282. And yet,
according to KPRS, “BIE was submitting invoices demanding payment for 90% of its
work.” Id. When KPRS informed BIE that “no more payments would be made until
BIE caught up with its work so that it would reflect the payment applications, and that
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BIE needed to staff more people on the job to achieve that goal,” a BIE representative
“defiantly asserted he had no more men to put on the job and that KPRS could do
whatever it wanted, including firing BIE.” Id. at PageID.1282–83.
And so, according to KPRS, on September 29, 2023, BIE sent a formal letter to
KPRS, “reiterating that if BIE did not receive payment for its disputed invoices, BIE
would demobilize from the Project.” Id. at PageID.1283. The “subject of the letter was
‘Notice of intent . . . to terminate contract.’” Id. at PageID.1283–84. In KPRS’ view, its
correspondence to BIE in October 2023 was not itself an exercise of KPRS’ right to
terminate the contract, but instead merely an “acknowledgement in writing of BIE’s
repudiation of the Subcontract.” Id. at PageID.1284.
B. 	Procedural History
1. 	KPRS’ Complaint
KPRS initiated this lawsuit in March 2024. Dkt. No. 1. The complaint advances
seven counts:
Count I asserts a breach of contract, alleging that BIE failed to perform its
contractual obligations and that KPRS suffered damages as a result. Id. at PageID.11
(¶¶ 29–33).
Count II is a claim of anticipatory repudiation, in which KPRS alleges that BIE
“anticipatorily repudiated the contract through its many communications to KPRS that
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it was unable and unwilling to complete its contractual obligations.” Id. at PageID.12
(¶¶ 34–40).
Count III raises a claim of unjust enrichment; according to KPRS, it “conferred
significant benefits” upon BIE by “paying” BIE monies to “purchase equipment and
materials to be used on the Project,” which BIE did not use for those ends. Id. at
PageID.13 (¶¶ 41–46). Count IV, meanwhile, alleges conversion based on similar
allegations. Id. at PageID.13–14 (¶¶ 47–54).
Count V alleges that BIE “made certain representations to KPRS in connection
with the Project,” despite “kn[owing] at the time it made those representations that they
were false.” Id. at PageID.14–15 (¶¶ 55–59).
Finally, Counts VI and VII request a declaratory judgment and specific
performance. Id. at PageID.15–16 (¶¶ 60–64).
2. 	BIE’s Counterclaim
In April 2024, BIE filed its answer to KPRS’ complaint, Dkt. No. 13, and
separately filed a counterclaim against KPRS, Dkt. No. 13‐1.1 In the caption of its
counterclaim document, BIE labeled itself the “Counterclaimant” and labeled KPRS the
“Counterclaim Defendant.” Id. at PageID.43–44.
1 	The latter document also included a third‐party complaint against Third‐Party
Defendant Fidelity and Deposit Company of Maryland, which concerns a mechanic’s
lien discharge bond; that third‐party complaint has no bearing on the issues raised in
the current motions, and the court therefore will not describe it further.
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In its counterclaim, BIE asserts two counts against KPRS. Count I asserts that
KPRS breached the Subcontract Agreement “by failing to timely pay BIE the amounts
due and owing to BIE under the Subcontract Agreement.” Id. at PageID.48 (¶¶19–22).
Count II presents a claim of unjust enrichment, alleging that “BIE conferred benefits
upon KPRS by providing materials and labor at KPRS’ direction and request,” that “BIE
conferred these benefits with the reasonable expectation that KPRS would compensate
BIE for such benefits,” and that it “would be unjust for KPRS to retain the benefits
conferred by BIE without compensation to BIE.” Id. at PageID.48–49 (¶¶ 23–27).
3. 	The Scheduling Orders and the Expert Disclosures
The parties have, since early in the case, had the benefit of scheduling orders that
set deadlines for expert disclosures. These scheduling orders used the template
language regularly used to set these expert disclosure deadlines in civil litigation in this
district. No counsel ever asked for any clarification about the expert disclosure
deadlines.
The first scheduling order was issued on July 19, 2024, when the court—using
standard district template language—required each party to make “disclosures
regarding expert witnesses” according to the following schedule: “All plaintiffs shall
comply by February 18, 2025,” and “All defendants shall comply by April 21, 2025.”
Dkt. No. 31, at PageID.145. The court also authorized “[r]ebuttal disclosures to a
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witness identified by another party,” so long as those disclosures were made within
thirty days “after disclosure by the other party.” Id.
The court amended the scheduling order on April 15, 2025, once again retaining
standard template district language: while the court noted that the deadline for “All
plaintiffs” to make disclosures regarding expert witnesses had closed, it set the deadline
for “All defendants” to make expert disclosures by October 17, 2025. Dkt. No. 43, at
PageID.185.
On October 22, 2025, the court endorsed the parties’ stipulation to “extend the
deadline for BIE to submit its expert disclosures in this matter for three weeks from
October 17, 2025 to November 7, 2025,” and to allow KPRS to file a rebuttal report “by
December 8, 2025.” Dkt. No. 59, at PageID.233. Given that the deadline for “All
plaintiffs” to make expert disclosures had already closed, and given that the October 17,
2025, deadline only concerned disclosures by “All defendants,” it followed that the
court was only extending the deadline for BIE’s expert disclosures in its role as
“defendant[].”
BIE nonetheless disclosed, on November 7, 2025, an expert that it sought to use,
not only to support its defense against KPRS’ claims, but also to prove affirmative
counterclaims of delay damages (claims that had not been explicitly alleged in BIE’s
counterclaim). See Dkt. No. 66. This meant that, rather than having an opportunity to
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make its own “defendant[]” expert disclosure in response to this counterclaim, KPRS
was limited to filing a rebuttal expert disclosure.
4. 	The Cross‐Motions for Summary Judgment
The parties have now filed cross‐motions for summary judgment. KPRS’ motion
seeks partial summary judgment solely on BIE’s affirmative claims of delay damages.
KPRS contends that BIE failed to timely disclose the expert witness on which it seeks to
rely for its affirmative claims of delay damages, that the expert should therefore be
excluded, and that BIE cannot meet its burden on that claim without an expert. Dkt.
Nos. 73 and 74. BIE filed an opposition to KPRS’ motion, Dkt. Nos. 83 and 84, and
KPRS filed a reply in further support, Dkt. No. 87.
BIE’s cross‐motion seeks summary judgment on Counts I, II, and VI of KPRS’
complaint. BIE’s argument is that KPRS terminated the Subcontract Agreement without
following the termination procedures laid out in the agreement (and therefore breached
the contract), that the court should reach this conclusion as a matter of law, and that
KPRS cannot obtain damages on any of its contract claims because of its own breach.
Dkt. Nos. 77 and 78. KPRS filed an opposition in which it argues that it did not have to
follow the termination procedures because BIE committed an anticipatory repudiation
of the contract. Dkt. Nos. 85 and 86. And, while it did not make this argument in its
own motion for partial summary judgment, KPRS here argues that the court should
find anticipatory repudiation as a matter of law. BIE filed a response in further support
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of its motion and in opposition to KPRS’ belated request for summary judgment on
anticipatory repudiation. Dkt. Nos. 88 and 89.
The court scheduled a hearing on these motions on February 20, 2026, but after
carefully reviewing the parties’ written submissions, concludes that the motions are
suitable for disposition without a hearing as authorized by Local Rule 7.1(c).
SUMMARY JUDGMENT STANDARD
Summary judgment is only appropriate when a movant shows there is no
genuine dispute as to any material fact, and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The question is “whether the evidence presents a
sufficient disagreement to require submission to a [trier of fact] or whether it is so one‐
sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251–52 (1986).
The party seeking summary judgment bears the initial burden of demonstrating
the absence of any genuine disputes of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party makes that showing, the burden then shifts to the
nonmoving party to “come forward with specific facts showing that there is a genuine
issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(cleaned up). In assessing whether a genuine issue exists, the court must draw all
reasonable inferences in favor of the non‐moving party. Matsushita Elec., 475 U.S. at 587;
see also Barnes v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 538 (9th Cir. 2018).
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DISCUSSION
A. 	KPRS’ Motion for Partial Summary Judgment
KPRS moves for partial summary judgment on BIE’s affirmative delay damages
claims. The premise of KPRS’ motion is that BIE violated the court’s scheduling orders
by failing to make timely expert disclosures in support of its affirmative claims of delay
damages. Although the disclosures met the deadline set for “[a]ll defendants,” KPRS
points out that “[a]ll plaintiffs” were required to produce expert reports several months
earlier. And KPRS contends that in its role as counterclaimant, BIE was a “plaintiff”
within the meaning of the orders.
KPRS’ interpretation of the orders is sound. The most natural and commonsense
reading of their language is that the party bringing a claim will make an expert
disclosure first (with the other party allowed to make a rebuttal disclosure). And then,
after some period of discovery practice, the party defending against the claim is allowed
the opportunity to disclose a defensive expert of their own (with the other party again
allowed to make a rebuttal disclosure). This reading of the orders is supported not only
by the most logical practical operation of pretrial procedure, but also by the “well
established” principle that “a counterclaim results in shifting the parties so that the
party counterclaiming becomes the plaintiff on the counterclaim and the original
plaintiff becomes the defendant.” Polimaster Ltd. v. RAE Sys., Inc., 623 F.3d 832, 839 (9th
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Cir. 2010) (holding that the term “defendant” in an arbitration agreement
unambiguously included a counterclaim defendant).
It follows that BIE did indeed violate this court’s scheduling orders by waiting
until the “defendants” deadline to make expert disclosures in support of its affirmative
delay damages claims. But that conclusion alone does not warrant summary judgment.
A district court “has wide discretion in controlling discovery and that discretion is
particularly wide in deciding whether to exclude witnesses.” V5 Techs. v. Switch, Ltd.,
334 F.R.D. 615, 617 (D. Nev. 2020) (cleaned up). Courts “do not construe the duty to
provide witness disclosures in a manner that puts form over substance,” and the key
question is whether the opposing party has been “put on notice of the factual and legal
contentions of the opposing party.” Id. The court need not exclude a witness if the
violation of a court’s scheduling order is either harmless or substantially justified. See
Fed. R. Civ. P. 37(c)(1). 2
BIE has not shown any substantial justification. To be sure, BIE notes that the
court’s scheduling orders never explicitly identify BIE as a “plaintiff,” and that the
2 	KPRS makes mention of the fact that BIE did not amend its counterclaim to add
an affirmative claim of delay damages, but it does not distinctly argue that exclusion
should follow from that pleading omission standing alone. And for good reason:
“under Federal Rule of Civil Procedure 54(c), . . . the district court may grant any relief
to which the evidence shows a party is entitled, even though the party has failed to
request the appropriate remedy or remedies in his pleading.’” Scarlett Honolulu, Inc. v.
Honolulu Liquor Comm., Civil No. 21‐00457, 2024 WL 4224861, at *4 (D. Haw. Sept. 17,
2024) (quoting 5 Charles Alan Wright & Arther R. Miller, Federal Practice and Procedure
§ 1255 (4th ed. June 2024 Update)).
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caption of the orders instead refer to BIE as “Defendant.” Nor do the scheduling orders
explicitly say that in its role as counterclaimant, BIE qualifies as a “plaintiff” for
purposes of the expert disclosure deadline. In light of this ambiguity, the court cannot
say that BIE’s proffered interpretation of the language is entirely unsupportable or
frivolous. 3 Accord Polimaster, 623 F.3d at 844–47 (Clifton, J., dissenting) (rejecting the
panel majority’s conclusion and reasoning that an arbitration agreement’s use of
“defendant” did not unambiguously cover a counterclaim defendant).
But it is one thing for BIE to identify a plausible alternative reading of the orders,
and quite another to show that it was substantially justified in relying on its reading.
BIE cannot do the latter. After all, it is well understood within the Ninth Circuit—or at
least it has been since Polimaster was decided in 2010—that “the party counterclaiming
becomes the plaintiff on the counterclaim.” 623 F.3d at 839. And while the scheduling
orders never identified BIE as “plaintiff” or KPRS as “defendant” on BIE’s counterclaim,
BIE went at least half of the way toward doing so itself: in the caption of its
counterclaim document, BIE labeled KPRS the “Counterclaim Defendant.” Dkt. No. 13‐
1, at PageID.43–44. Given these circumstances, therefore, BIE’s counsel at a minimum
should have conferred with opposing counsel or sought guidance from the court before
3 	For that reason, the U.S. Magistrate Judges in this District, who typically issue
these scheduling orders, will be discussing whether there might be a way to reduce any
ambiguity in the template’s standard language.
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relying on a plausible—but strained—reading of the court’s orders. Because they failed
to do so, the court cannot conclude BIE’s conduct was substantially justified.
Nonetheless, the court does conclude that BIE’s conduct was harmless. Trial is
still several months away, and so while discovery has already closed, the court could
readily reopen discovery (and even continue the trial date) if KRPS were to identify any
ways in which it truly needed to conduct additional discovery to adequately scrutinize
BIE’s untimely expert disclosures. It is also significant that, while KPRS’ motion papers
assert that KPRS has been harmed by the untimely delay, they do not identify any
concrete way in which that might be true. KPRS has already engaged in some
discovery practice concerning BIE’s expert, and it noticed a deposition of that expert.
See Dkt. No. 76. Under these circumstances, the sanction of excluding BIE’s expert
witnesses is not appropriate.
And that means summary judgment is not appropriate. KPRS’ only argument
for partial summary judgment on the affirmative delay damages claims is that, without
its proposed expert testimony, BIE cannot meet its burden on those claims. Because the
court has rejected KPRS’ arguments for excluding the expert testimony, KPRS’ request
for summary judgment must be rejected as well.
B. 	BIE’s Motion for Summary Judgment
BIE seeks summary judgment on three of KPRS’ claims. As was the case with
KPRS’ motion, BIE’s motion rests on a single premise: that KPRS failed to comply with
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the termination procedures in the Subcontract Master Agreement as a matter of law.
From that premise, BIE argues for two conclusions: that KPRS breached the contract,
and that its breaches preclude it from seeking contractual relief.
KPRS does not seriously dispute BIE’s premise, at least for purposes of this
summary judgment proceeding. Nor does it dispute that if KPRS did itself breach the
contract, then it cannot recover for a counterparty’s breach. And for good reason:
Hawai‘i state law (which all parties agree controls the substantive legal issues in this
diversity jurisdiction case) provides that “as a general rule, ‘a party cannot recover for a
breach of contract if he fails to comply with the contract himself.’” Accord PR Pension
Fund v. Nakada, 8 Haw. App. 480, 491, 809 P.2d 1139, 1146 (Haw. Ct. App. 1991) (quoting
17A Am. Jur. 2d Contracts § 617, at 625 (1991)).
Instead, KPRS denies that it breached the contract. According to KPRS, it did not
have to rely on the contract’s termination procedures, because BIE itself effectively
terminated the contract through its anticipatory repudiation. If that is so, KPRS
continues, then its alleged failure to follow termination procedures cannot amount to a
breach of the contract, since BIE’s own conduct had already served to end the
contractual relationship. And if KPRS did not breach the contract, then it is not barred
from seeking relief.
As a threshold matter, KPRS is correct that Hawai‘i state law recognizes the
doctrine of anticipatory repudiation. Under this doctrine, an anticipatory repudiation
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“occurs when a party communicates definite renunciation of future performance under
the contract.” Langer v. Rice, No. 29636, 2013 WL 5788676, at *15 (Haw. Ct. App. Oct. 28,
2013) (citing Romig v. deVallance, 2 Haw. App. 597, 605, 637 P.2d 1147, 1152–53 (Haw. Ct.
App. 1981)); accord 13 Williston on Contracts § 39:37 (4th ed. May 2025 Update)
(explaining that “the repudiating party must have communicated, by word or conduct,
unequivocally, unconditionally, and positively, its intention not to perform”). But a
court will not find a repudiation “by a mere breach of contract not so substantial and
fundamental as to defeat the object of the parties in making the agreement.” Golf Carts,
Inc. v. Mid‐Pac. Country Club, 53 Haw. 357, 359, 493 P.2d 1338, 1339 (Haw. 1972) (cleaned
up). And so to qualify as an anticipatory repudiation, a party’s announced refusal to
perform “must go to the root of the contract” or “must be in respect of matters which
would render the performance of the remainder a thing different in substance from that
which was contracted for.” Id.
KPRS argues that BIE’s anticipatory repudiation is so obvious and
incontrovertible that it should be found as a matter of law. On this the court disagrees.
“Whether a party to a contract committed an anticipatory repudiation is generally a
question of fact.” Peck v. Nakkim, No. 29480, 2013 WL 6762359, at *9 (Haw. Ct. App. Dec.
20, 2013). And KPRS’ argument for anticipatory repudiation raises matters of
credibility and inferences that cannot be resolved in its favor at the summary judgment
stage.
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But the existence of genuine disputes of material fact on anticipatory repudiation
also precludes summary judgment in BIE’s favor. That is because, as a matter of law, if
BIE did indeed commit an anticipatory repudiation, then KPRS would not have needed
to exercise its contractual termination rights before bringing this lawsuit. “Under the
doctrine of anticipatory repudiation, a plaintiff acquires the elective right to sue when
the other party repudiates the contract.” Langer, 2013 WL 5788676, at *13. BIE’s
anticipatory repudiation would, therefore, have entitled KPRS to bring suit without
needing to terminate the contract of its own volition.
BIE resists this conclusion, but it does not offer any argument that would
warrant a different result. BIE principally contends that KPRS should be judicially
estopped from denying that it terminated the contract because it has already admitted
to having done as much. Dkt. No. 88, at PageID.1329–31. That may well be, but it does
not advance BIE’s position here. If a jury finds that BIE committed anticipatory
repudiation, then KPRS was entitled to sue. The fact that KPRS might have attempted
(perhaps unsuccessfully) to invoke its contractual termination rights after the
anticipatory breach need not, as a matter of logic, mean that it lost the right to sue
because of the anticipatory breach. It is entirely sensible that a party faced with an
anticipatory repudiation might—in an effort to shore up their position for eventual
litigation—also attempt to invoke contractual termination procedures, and perhaps also
encourage its counterparty to simply walk away. “That some wear a belt and
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suspenders does not prove the inadequacy of either to hold up the pants, but only the
cautious nature of the person wearing the pants.” United States v. Carona, 660 F.3d 360,
369 (9th Cir. 2011) (cleaned up).
BIE alternatively argues that, as a matter of contract interpretation, the
Subcontract Master Agreement’s termination provisions should be interpreted as
preempting or removing KPRS’ right to sue in the face of an anticipatory repudiation.
See Dkt. No. 77‐1, at PageID.729–31. That is, BIE’s contention here is that KPRS did not
have the option of donning both a belt and suspenders, as the contract eliminated one of
those options. But while it is true, as BIE says, that “parties are free to agree to
contractual conditions on a party’s ability to assert anticipatory repudiation relating to
obligations arising from the subject contract,” id. at PageID.731, BIE has not identified
any language in the Subcontract Master Agreement that can be fairly construed as
having done so here. Indeed, BIE points to no place in the agreement where the phrase
“anticipatory repudiation” is even mentioned.
To be sure, § GC‐42 authorizes KPRS to terminate for cause if BIE ever were to
“[a]bandon[] or refuse[] to proceed with any of the [w]ork” or “[f]ail[] to fulfill or
comply with any of the terms” of the agreement. Dkt. No. 78‐3, at PageID.814. BIE
contends that this language amounts to an “agree[ment] to an express contractual
provision applicable to situations where KPRS contends that BIE anticipatorily
repudiated the contract.” Dkt. No. 77‐1, at PageID.732. But it is not fairly read that
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way; the language of § GC‐42 nowhere mentions anticipatory repudiation and does not
remotely track any substantive standard for default consistent with anticipatory
repudiation. It instead sweeps far more broadly. Under § GC‐42, KPRS could have
terminated for cause based on BIE’s refusal to “proceed with any of the [w]ork,”
regardless of how substantial the work at issue might be in relation to the overall
construction project, and regardless of how unequivocal and unconditional the refusal
might be.
And while BIE contends, unpersuasively, that § GC‐42 tracks the doctrine of
anticipatory repudiation, it does not attempt to defend the broader and more startling
suggestion that a party who negotiates for a broad termination right in a contract must
be viewed as having surrendered any narrower common law right to sue. 	After all,
under the Subcontract Master Agreement, KPRS could also terminate the agreement
under § GC‐43 simply for its own convenience. The broad language of § GC‐43 surely
covers anticipatory repudiation—after all, it would be convenient for a party to
terminate a contract in the face of an anticipatory repudiation—but even BIE does not
suggest that the breadth of this contractual language means that KPRS has implicitly
surrendered its narrower common law rights.
Nor does the fact that § GC‐42 and § GC‐43 provide procedural protections for
BIE support an inference that those same procedural protections ought to apply in the
case of anticipatory repudiation. It makes sense that the contracting parties would pair
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the broad contractual termination rights with procedural protections, so that BIE would
be entitled to clear notice before KPRS could invoke termination rights that would
contractually require BIE to stop work on the project. But KPRS’ broad termination
rights do not imply that KPRS meant to give up its independent common law right to
sue if BIE ever took it upon itself to repudiate the contract and refuse to work on the
project. At the least, BIE has not offered any argument to support that implication.
In the end, the Subcontract Master Agreement is most naturally read to equip
KPRS with the broad right under § GC‐42 and § GC‐43 to terminate the contract so long
as it followed certain procedural requirements—rights that it would not have possessed
if it had not bargained for them in the contract. At the same time, the contract is not
fairly read to require KPRS to adhere to those procedural requirements even in the
unusual event of an anticipatory repudiation by BIE. See generally 13 Williston on
Contracts § 39:37 (4th ed. May 2025 Update) (explaining that “following a clear
repudiation, the other party should not be required to perform the formal, economically
wasteful, useless act of performing further”).4
4 	To be sure, in the face of an alleged anticipatory repudiation, a party might
choose not to sue and instead to continue accepting the benefits of the contractual
relationship. Behavior of that sort might result in the forfeiture of a right to sue based
on the anticipatory repudiation. But BIE does not here suggest that KPRS sat back and
took no action after the breakdown in their relationship; in a series of communications
between the parties, KPRS plainly expressed its understanding that the relationship had
come to an end, even if (as BIE alleges) it did not adequately comply with the particular
requirements of the Subcontract Master Agreement’s termination provisions.
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The upshot is that a jury must resolve whether BIE committed an anticipatory
breach. If the jury finds that BIE did not do so, then BIE will be free to persuade the
jury that KPRS breached the contract itself by failing to properly follow the termination
provisions. But these are questions for the jury to resolve at trial, not for the court to
resolve at summary judgment.
CONCLUSION
For the foregoing reasons, the cross‐motions for partial summary judgment are
each DENIED.
IT IS SO ORDERED.
DATED: January 28, 2026, at Honolulu, Hawai‘i.
Civil No. 24‐00106 MWJS‐KJM; KPRS Hawaii Construction, Inc. v. Big Island Electric, Inc.;
ORDER DENYING COUNTERCLAIM DEFENDANT’S MOTION FOR PARTIAL
SUMMARY JUDGMENT AND DENYING DEFENDANT BIE’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
/s/ Micah W.J. Smith
Micah W.J. Smith
United States District Judge
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