L.P.R. Construction Co., LLC v. Doing Steel Fabrication, LLC et al

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
L.P.R. CONSTRUCTION CO., LLC, 	)
)
Plaintiff, 	)
)
vs. 	) 	Case No.: 6:24-cv-03224-MDH
)
DOING STEEL FABRICATION, LLC, et al., 	)
)
Defendants. 	)
ORDER
Before the Court is Defendant/Counter Claimant Doing Steel Fabrication, LLC (“Doing
Steel”) and Defendant Nationwide Mutual Insurance Company’s (“Nationwide”) (collectively
“Defendants”) Motion for Partial Summary Judgment. (Doc. 89). Defendants filed Suggestions in
Support (Doc. 91), Plaintiff/Counter Defendant L.P.R. Construction Company, LLC (“LPR”) filed
Suggestions in Opposition (Doc. 103) and Defendants have filed a reply. (Doc. 108). Additionally,
before the Court is Plaintiff and Counter Defendant Berkshire Hathaway Specialty Insurance
Company’s (“Berkshire) (collectively “LPR/Berkshire”) Joint Motion for Partial Summary
Judgment. (Doc. 92). LPR/Berkshire filed Suggestions in Support (Doc. 93), Defendants filed
Suggestions in Opposition (Doc. 106) and LPR/Berkshire have filed a reply. (Doc. 109). The
motions are now ripe for adjudication on the merits. For the reasons stated herein, Defendants’
Motion for Partial Summary Judgment is GRANTED IN PART AND DENIED IN PART and
LPR/Berkshire’s Joint Motion for Partial Summary Judgment is DENIED.
BACKGROUND
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This case arises out of a construction litigation dispute stemming from erection of structural
steel for a project in Bentonville Arkansas (“the Project”). Plaintiff/Counter Defendant LPR is a
foreign limited liability company with its principal place of business in Loveland, Colorado and
with each of its members residing in the state of Colorado. Defendant/Counter Claimant Doing
Steel is a Missouri limited liability company whose four individual members are all residents of
the state of Missouri. Defendant Nationwide is a foreign insurance company with its principal
place of business in Columbus, Ohio. Counter Defendant Berkshire is a foreign insurance company
whose principal office is located in Boston, Massachusetts.
On or around January 25, 2022, Plaintiff LPR contracted with Defendant Doing Steel to
provide structural and miscellaneous steel erection services, joists & deck work, and materials
required for erection as required for the construction of improvements to real property owned by
Walmart, Inc in Arkansas. Plaintiff alleges that it has substantially performed its obligations under
the subcontract and that $3,111,600.82 is now owed by Defendant Doing Steel. Plaintiff filed a
lien against the Walmart property to secure its claim for contract damages. On or around December
28, 2023, Defendant Doing Steel obtained a release of the property from LPR’s lien by posting the
Mechanic’s Lien Release Bond (“Bond”) in the amount of $4,000,000.00 pursuant to Arkansas
statues.
Plaintiff filed suit with four counts: Count I – Breach of Contract; Count II – Quantum
Meruit; Count III – Missouri Prompt Pay Act; and Count IV – Claim Against Nationwide Under
Lien Release Bond. (Doc. 1). Defendant Doing Steel filed an Answer to Plaintiff’s Complaint
raising, in relevant part, the affirmative defenses of setoff, prior material breach and material
breach of contract by LPR. (Doc. 11, Affirmative Defenses ¶¶ 3-5). Defendant Doing Steel also
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filed a First Amended Counterclaim raising two counts: Count I – Breach of Contract – LPR and
Count II – Action on Bond – Berkshire. (Doc. 30).
Defendants bring their Motion for Partial Summary Judgment arguing that they are entitled
to summary judgment on Count II – Quantum Meruit and Count IV – Claim Against Nationwide
Under Lien Release Bond. LPR/Berkshire bring their Joint Motion for Partial Summary Judgment
arguing that they are entitled to summary judgment on Counterclaim Count I – Breach of Contract
– LPR, Counterclaim Count II – Action on Bond – Berkshire and Defendant Doing Steel’s
affirmative defenses of setoff, prior material breach and material The Court will take these
arguments in turn.
STANDARD
Summary judgment is proper where, viewing the evidence in the light most favorable to
the non-moving party, there are no genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a); Reich v. ConAgra, Inc., 987 F.2d 1357, 1359
(8th Cir. 1993). “Where there is no dispute of material fact and reasonable fact finders could not
find in favor of the nonmoving party, summary judgment is appropriate.” 	Quinn v. St. Louis
County, 653 F.3d 745, 750 (8th Cir. 2011). 	Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the movant meets the initial step, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). To satisfy this burden, the nonmoving party must “do more than
simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
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DISCUSSION
I. 	Defendants’ Motion for Partial Summary Judgment
A. 	Count II – Quantum Meruit
Defendants argue they are entitled to summary judgment on Count II – Quantum Meruit
because the parties had an express contract for the work performed on the Project. LPR/Berkshire
argue that LPR’s quantum meruit claim is regarding extra work not governed by the Subcontract
Agreement. Specifically, LPR/Berkshire state that as requested by Defendant Doing Steel or
required by job conditions, LPR would perform extra work, not within the contractually defined
original scope of work. LPR/Berkshire argue that Defendant Doing Steel accepted the work and
that LPR’s pay applications did not include billing for extra work captured in change order requests
(“COR”) unless the CORs became fully executed Change Orders. LPR/Berkshire state that the
extra work performed by LPR, and accepted by Defendant Doing Steel, was work for which no
Change Order was issued.
Under Missouri law, an action for quantum meruit is not allowed when an express contract
governs the subject matter for which recovery is sought. 32nd St. Surgery Ctr., LLC v. Right Choice
Managed Care, 820 F.3d 950, 956 (8th Cir. 2016) (citing Lowe v. Hill, 430 S.W.3d 346, 349
(Mo.Ct.App.2014) (barring recovery under an equitable theory when there is “an express contract
for the very subject matter for which [plaintiff] seeks to recover”); see also Burrus v. HBE Corp.,
211 S.W.3d 613, 619 (Mo.Ct.App.2006) (“[A] Plaintiff may not maintain an action in quantum
meruit where the plaintiff’s relationship with the defendant is governed by an existing contract.”).
In such cases, “the plaintiff’s sole theory of recovery must lie on the contract.” Burrus, 211 S.W.3d
at 619.
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The Court finds an express agreement exists that covers changes to the work performed by
LPR including extra work. The Subcontract Agreement entered into by Defendant Doing Steel and
Plaintiff LPR covers the work to be performed on the project in the instant case. It states in relevant
part:
Changes. Contract, without nullifying this Agreement, may direct Subcontractor
in writing to make changes to Subcontractor’s Work. Adjustment, if any, in the
contract price or contract time resulting from such changes shall be set forth in a
Subcontract Change Order pursuant to the Contract Documents. If extra work was
ordered by the Contractor and the Subcontractor performed same but did not
receive a written order therefor, the Subcontractor shall be deemed to have waived
any claim for extra compensation, regardless of any written or verbal protests of
claims by the Subcontractor. All extra work must be approved in writing by
Contractor prior to performance and costs submitted no later than ten (10 days
following the event/date of occurrence. If the extra work is not submitted during
the ten (10) day period the Subcontractor shall be deemed to have waived any claim
for extra compensation regardless of any written or verbal protests of claims by the
Subcontractor. The Subcontract shall be responsible for any costs incurred by the
Contractor for changes of any kind made by the Subcontractor that increases the
costs of the work for either the Contractor or other subcontractors when the
Subcontractor proceeds with such changes without a written order therefore.
ALL EXTRAS WILL GO TRHOUGH DOING STEEL. Subcontractor will deal
directly with DS at ALL TIMES.
(Doc. 103-1, page 13) (emphasis added). As there is an express contract signed by both Defendant
Doing Steel and Plaintiff LPR that covers the procedures necessary for any extra work, Plaintiff
LPR’s claim regarding the change orders requests are governed by this provision of the Agreement.
The Court finds there is no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. For the reasons stated, Defendants’ Motion for Summary Judgment
as to Plaintiff’s Count II – Quantum Meruit claim is GRANTED. Summary judgment as to
Plaintiff’s Count II – Quantum Meruit is entered in favor of Defendants.
B. 	Count IV – Claim Against Nationwide Under Lien Release Bond
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Defendants argue that Count IV – Claim Against Nationwide Under Lien Release Bond
fails because LPR’s lien does not provide a “just and true” account of the amounts LPR alleges
are owned to it. Specifically, Defendants argue that LPR’s lien does not reference, incorporate, or
attach any change orders, invoices, time sheets, or any other documentation evidencing that LPR
performed the work that makes up its claim amount. Further, Defendants argue that LPR failed to
strictly comply with the Arkansas lien requirements as LPR has failed to meet the burden of
proving its last day of work performed on the project.
LPR/Berkshire argue that the Western District of Arkansas has already ruled that LPR
provided a sufficient just and true account supporting its lien and thus issue preclusion should bar
Defendants from relitigating this issue. LPR/Berkshire further argue that LPR’s lien is properly
and timely perfected, regardless of whether it continued to provide labor, materials or services
beyond September 1, 2023. The Court will first evaluate whether collateral estoppel bars
Defendants from bringing their argument.
i. 	Collateral Estoppel
“Pursuant to federal law, judicial proceedings in one state will have the same full faith and
credit in every court within the United States as they have by law in the courts of such state from
which they are taken.” Charleston v. McCarthy, 8 F.4th 772, 777 (8th Cir. 2021) (quoting Haberer
v. Woodbury Cnty., 188 F.3d 957, 961 (8th Cir. 1999)). This applies “to issues decided by state
courts even where the subsequent federal case is brought pursuant to 42 U.S.C. § 1983.” Id.
Under the doctrine of collateral estoppel “[w]hen an issue of fact or law is actually
litigated and determined by a valid and final judgment, and the determination is
essential to the judgment, the determination is conclusive in a subsequent action
between the parties, whether on the same or a different claim.”
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Charleston v. McCarthy, 8 F.4th 772, 777 (8th Cir. 2021) (quoting Turner v. U.S. Dep’t of Just.,
815 F.3d 1108, 1111 (8th Cir. 2016)). Courts will look at state law in determining whether to apply
issue preclusion. Liberty Mut. Ins. Co. v. FAG Bearings Corp., 335 F.3d 752, 758 (8th Cir. 2003).
Under Missouri law collateral estoppel is appropriate when:
(1) the issue sought to be precluded is identical to the issue previously decided; (2)
the prior action resulted in a final adjudication on the merits; (3) the party sought
to be estopped was either a party or in privity with a party to the prior action; and
(4) the party sought to be estopped was given a full and fair opportunity to be heard
on the issue in the prior action.
Irving v. Dormire, 586 f.3d 645, 648 (8th Cir. 2009) (citing Ripplin Shoals Land Co. v. U.S. Army
Corps of Eng’rs, 440 F.3d 1038, 1044 (8th Cir. 2006)). The Court will analyze the current action
based on the factors articulated above.
a. 	Identical Issues
For collateral estoppel to preclude an issue, the issue must be identical to the issue
previously decided. The party seeking collateral estoppel has the burden “to demonstrate that the
issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” Irving
v. Dormire, 586 F.3d 645, 648 (8th Cir. 2009) (quoting Dowling v. United States, 493 U.S. 342,
350, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)). The Court “must examine the record of the prior
proceeding, including the pleadings and evidence, keeping in mind that the party asserting the
preclusion bears the burden of showing ‘with clarity and certainty what was determined by the
prior judgment.’” Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166, 1168 (8th Cir. 1989) (quoting
Jones v. City of Alton, Ill., 757 F.2d 878, 885 (7th Cir. 1985)). The doctrine of collateral estoppel
applies to matters necessarily decided in the former judgment even if there is no specific finding
or reference thereto. Irving v. Dormire, 586 F.3d 645, 648 (8th Cir. 2009) (citing Nelson v. Swing-
A-Way Mfg. Co., 266 F.2d 184, 187 (8th Cir. 1959)).
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The Court finds that the United States District Court for the Western District of Arkansas
Order denying Defendants Doing Steel and Nationwide Motion to Dismiss LPR’s claim for
damages based on the materialmen’s lien lacking a “just and true account of the demand due or
owing” and the current motion are identical issues. (See Doc 103-1, page 89–90). For the purposes
of collateral estoppel, the Court finds the first element satisfied.
b. 	Final Adjudication on the Merits
A “final judgment on the merits” must have been rendered on the issue sought to be
precluded in the cause in question for that issue to be barred under collateral estoppel. Loveland v.
Austin, 626 S.W.3d 716, 729 (Mo. Ct. App. 2021) (citing Jeffrey v. Cathers, 104 S.W.3d 424, 430
(Mo. App. E.D. 2003); Spath v. Norris, 281 S.W.3d 346, 351 (Mo. App. W.D. 2009).
The Court finds that the United States District Court for the Western District of Arkansas’s
ruling denying Defendants Doing Steel and Nationwide’s Motion to Dismiss was not a final
adjudication on the merits for the purpose of collateral estoppel. The Western District of Arkansas
ruled:
In considering Defendants’ Motion, the Court bears in mind that it must “accept as
true all facts pleaded by the non-moving party and grant all reasonable inferences
from the pleadings in favor of the non-moving party.” Gallagher v. City of Clayton,
699 F.3d 1013, 1016 (8th Cir. 2012) (quoting marks omitted). The lien does, in fact,
contain documentation to show the amounts invoiced by L.P.R., the money paid by
Doing Steel and credited to the account, and the balance due and owing. The
Arkansas Supreme Court held nearly 100 years ago “that failure to itemize the
account does not defeat the lien,” and as far as the Court is aware, that is still the
law today. See Standard Lumber Co. of Pine Bluff v. Wilson, 173 Ark. 1024, at *29
(1927). Doing Steel is entitled to request itemized invoices and other more specific
documentation to substantiate L.P.R.’s claim–but those requests can be made in the
course of discovery. See id. (“[W]hen it comes to enforcement of the claim by suit,”
the defendant may, “for the purposes of defense . . . insist upon the presentation of
an itemized claim.”). Accordingly, Doing Steel and Nationwide’s request for
dismissal under Rule 12(b)(6) due to the deficiency of the lien is DENIED.
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(Doc. 103-1, pages 89–90). The United States District Court for the Western District of Arkansas
made its ruling at the motion to dismiss stage, which requires the court accept as true all facts
pleaded by the non-moving party and grant all reasonable inferences form the pleadings in favor
of the non-moving party. Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012)
(quoting marks omitted). While the Western District of Arkansas made the determination that
LPR’s lien was sufficient to survive a motion to dismiss, it is a lower standard than what would be
required at the summary judgment stage or even at a trial setting. If the case remained in the
Western District of Arkansas, Defendants could have raised their argument again at various stages
of the litigation where the success of the argument may have depended on the legal standard at the
summary judgment or trial setting and thus this Court cannot conclude that the Western District of
Arkansas’s ruling was a final adjudication on the merits. For the purposes of collateral estoppel,
the Court finds LPR/Berkshire has failed to satisfy the second element. Thus, collateral estoppel
does not bar litigation of this issue.
ii. 	The “Just and True” Account Requirement of the Arkansas Lien Statute
Arkansas Code Annotated Title 18, Chapter 44 governs Mechanics’ and Materialmen’s
Liens. It states that:
Every contractor, subcontractor, or material supplier as defined in § 18-44-107 who
supplies labor, services, material, fixtures, engines, boilers, or machinery in the
construction or repair of an improvement to real estate . . . by virtue of a contract
with the owner, proprietor, contractor, or subcontractor, or agent thereof, upon
complying with the provisions of this subchapter, shall have, to secure payment, a
lien upon the improvement and on up to one (1) acre of land upon which the
improvement is situated or to the extent of any number of acres of land upon which
work has been done or improvements erected or repaired.
Ark. Code Ann. § 19-44-101(a). The filing of a lien is governed by Ark. Code Ann. § 18-44-117
and states that:
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A person who wishes to avail himself or herself of the provisions of this subchapter
has a duty to file with the clerk of the circuit court of the county in which the
building, erection, or other improvement to be charged with the lien is situated and
within one hundred twenty (120) days after the things specified in this subchapter
have been furnished or the work or labor done or performed:
A just and true account of the demand due or owing to him or her after allowing all
credits[.]
Ark. Code Ann. § 18-44-177(a)(1)–(a)(1)(A). Finally, Ark. Code Ann. § 18-44-118 governs the
filing of bond in contest of lien. Ark. Code Ann. § 18-44-118 allows for a party to contest a lien
by posts a bond with surety in the amount of the lien claimed. Ark. Code Ann. § 18-44-118(a)(1).
The bond shall be conditioned for the payment of the amount of the lien, or so much
of the lien as may be established by suit, together with interest and the costs of the
action, if upon trial it shall be found that the property was subject to the lien.
Ark. Code. Ann. § 18-44-118(a)(2). The Arkansas lien statute is construed strictly because it is an
extraordinary remedy not available to every merchant or worker. Servewell Plumbing, LLC v.
Summit Contractors, Inc., 362 Ark. 598, 606, 210 S.W.3d 101, 107 (2005) (citing Christy v.
Nabholz Supply Co., Inc., 261 Ark. 127, 546 S.W.3d 425 (1977)). Additionally, the Arkansas
Supreme Court ruled on the issue on what is required for a “just and true account”. In Terry v.
Klein, 133 Ark. 366, 201 S.W. 801 (1918) the Arkansas Supreme Court held:
Conceding that the words ‘just and true account’ mean, as ordinarily construed, an
itemized account (Brooks v. International Shoe Co., 132 Ark. 386 [200 S. W.
1027]), this court has decided that failure to itemize the account does not defeat the
lien. Wood v. King, 57 Ark. 284 [21 S. W. 471]. In reaching that conclusion the
court followed the rule which had been repeatedly announced here that the lien of
a mechanic or material furnisher ‘springs out of the appropriation and use by the
landowner of the mechanic's labor or the furnisher's materials, and not from the
taking of those formal steps which the statute enjoins for the preservation and
assertion of the lien and for giving notice to others of its existence and extent’; that
the statute is highly remedial in its nature and that when ‘the controversy is between
the holder of the lien and the proprietor of the land, an exact compliance with the
statute at all points is not indispensable.’ Anderson v. Seamans, 49 Ark. 475 [5 S.
W. 799].”
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LPR has satisfied the Arkansas Code Annotated § 18-44-117 requirement of a just and true
statement of account. Here, LPR/Berkshire has submitted LPR’s True and Just Statement of
Account as shown below.
(Doc. 103-1, page 20). While the lien statute does not define what documentation is minimally
necessary for a “just and true account of the demand” the above accounting is enough to comply
with the statute. This accounting shows the amounts invoiced by LPR, the money paid by
Defendant Doing Steel, and the balance due and owing. While Defendants argue that LPR’s lien
does not reference, incorporate, or attach any change orders, invoices, time sheets, or any other
documentation evidencing that LPR performed the work that makes up its claim amount, that, in
itself, is not a requirement as defined in Ark. Code Ann. § 18-44-117. The Court finds that LPR
has satisfied the Ark. Code Ann. § 18-44-117 with its true and just statement of account. For the
reasons stated, Defendants’ Motion for Summary Judgment on Count IV - Claim Against
Nationwide Under Lien Release Bond based upon the just and true account requirement in Ark.
Code Ann. § 18-44-117 is DENIED.
iii. 	Last Day of Work Performed
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Defendants argue that LPR did not and cannot provide sufficient evidence of the work it
performed on its purported last day of work or even what its last day of work was. Defendants
further argue that this failure to identify the work performed on its last day of work, and the fact
that this last day of work is likely inaccurate, qualifies as a failure to strictly comply with statutory
requirements as outlined by Ark. Code Ann. § 18-44-115. Specifically, Defendants contend that
Peter Radice, corporate representative for LPR, testified that September 1, 2023, was the “last day
that [LPR] furnished work,” but he could not state exactly what work was performed on that date,
but he thought “it was something with the miscellaneous metals package.” Statement of Facts
(“SOF”) ¶ 8. Defendants argue that both manpower reports and contemporaneous e-mails after
September 1, 2023, indicate that LPR was performing work beyond just removing equipment after
September 1, 2023, which demonstrates the last day of work was after September 1, 2023. SOF ¶
11. LPR/Berkshire’s argue that LPR has always maintained that it last performed work on
September 1, 2023. LPR argues that it provided the 75-day notice on October 23, 2023, less than
75 days after September 1, 2023. LPR/Berkshire further argue that the same pertains to LPR’s 10-
day notice and that LPR recorded its lien on November 30, 2023, less than 120 days after its last
furnishing, all in compliance with Ark. Code Ann. § 18-44-115. Regardless, LPR argues that if its
final day of work was September 1, 2023 or beyond, it has satisfied Ark. Code Ann. § 18-44-115.
Ark. Code Ann. § 18-44-115 governs notice to owner by contractor. Specifically, Ark.
Code Ann. § 18-44-115(b)(5)(A) states that the “notice shall be sent to the owner, the owner’s
authorized agent, or the owner’s registered agent and to the contractor before seventy-five (75)
days have elapsed from the time that the labor was supplied or the materials furnished.”
LPR has complied with Ark. Code Ann. § 18-44-115. Here, LPR has provided an affidavit
of Junius Bracy (JB) Cross an attorney who has been licensed to practice law in the State of
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Arkansas since 1978 and who primarily practices in commercial construction law and Arkansas
lien law. (Doc. 103-3, ¶¶ 2-4). Mr. Cross assisted in preparing the lien and reviewed the lien filed
by LPR with the Benton County Circuit Clerk. Id at ¶ 5. Mr. Cross stated that LPR last performed
work on September 1, 2023, and was required to give its 75-day Notice by November 15, 2023,
pursuant to Ark. Code Ann. § 18-44-115(b). Id at ¶¶ 11-12. Mr. Cross stated LPR gave its 75-day
Notice on October 23, 2023, within the timeframe required and that the 75-day notice complied
with the service and notice requirements of Ark. Code Ann. § 18-44-115(b)(5)(B). Id at ¶¶ 13 and
15. LPR also provided its 75 Day Notice to Owner and Contractor which was served on Defendant
Doing Steel and other parties on October 23, 2023. (Doc. 103-3, page 17-19). The Court finds that
LPR has complied with Ark. Code Ann. § 18-44-115(b)(5)(A). Ark. Code Ann. § 18-44-
115(b)(5)(A) requires that the “notice shall be sent to the owner, the owner’s authorized agent, or
the owner’s registered agent and to the contractor before seventy-five (75) days have elapsed from
the time that the labor was suppled or the materials furnished. While the parties may disagree about
the specific end date, there is no dispute that LPR has filed the notice either on September 1, 2023
or at a later date, and thus complied with the 75-day mandate of Ark. Code Ann. § 18-44-
115(b)(5)(A). For the reasons stated, Defendants’ Motion for Summary Judgment on Count IV -
Claim Against Nationwide Under Lien Release Bond based upon the requirements of Ark. Code
Ann. § 18-44-115 is DENIED.
II. 	LPR/Berkshire’s Joint Motion for Partial Summary Judgment
A. 	Affidavits
Before the Court can evaluate LPR/Berkshire’s Joint Motion for Partial Summary
Judgment, Defendants first raise that the affidavits of Chris Cozza, LPR’s project manager, and
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Peter Radice, LPR’s Chief Operations Officer, should be given limited weight, and portions of
these affidavits should be struck. Specifically, Defendants argue that both the Cozza and Radice
affidavits lack foundation. LPR/Berkshire argue that both affiants confirm that their affidavits are
based on personal knowledge and there is not a single instance where their affidavits are
inconsistent with their earlier deposition testimony.
District courts enjoy considerable discretion when ruling on a motion to strike. See Jain v.
CVS Pharmacy, Inc., 779 F.3d 753, 758 (8th Cir. 2015). A court may strike an affidavit or
declaration that does not comply with Rule 56(c)(4). Id. Federal Rule of Civil Procedure 56(c)(4)
governs affidavits or declarations for purposes of summary judgment. It states that:
An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated.
Fed. R. Civ. P. 56(c)(4). Lay opinion testimony is admissible if the witness has “personal
knowledge” or “perceptions based on industry experience.” Jain v. CVS Pharmacy, Inc., 779 F.3d
753, 758 (8th Cir. 2015) (quoting Allied Sys., Ltd. v. Teamsters Local 604, 304 F.3d 785, 792 (8th
Cir. 2002)).
i. 	Chris Cozza Affidavit
Defendants argue that Mr. Cozza in his affidavit represents that he has the knowledge of
the facts set forth in his affidavit based on his position as the project manager for LPR. Defendants
argue that in Mr. Cozza’s deposition he covered his involvement in scheduling, change order,
general project oversight, and ordering equipment but nothing regarding contract negotiations or
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pay applications.1 However, Defendants assert that Mr. Cozza opines about the contracts for the
project in paragraphs 3-11 and 29, about pay applications for the project in paragraphs 13-17, 23
and 25 and about default letters and information regarding change orders from Doing Steel in
paragraphs 29-33 of the affidavit.
The Court finds that Mr. Cozza’s affidavit is made from his personal knowledge, sets out
facts that would be admissible evidence and shows that he is competent to testify on the matters
stated. Here, Mr. Cozza’s affidavit states “I served as project manager for [LPR] for the Walmart
ACT Center Project in Bentonville, Arkansas (“the Project”). As such, I have personal knowledge
of the facts set forth in this affidavit.” (Doc. 93-1, page 2, ¶ 1). Defendants are correct that Mr.
Cozza opines about the contracts for the project, default letters and information regarding change
orders. However, Mr. Cozza expressly confirms his personal knowledge on the subjects in the
affidavit and it is reasonable to conclude that the project manager for LPR would have personal
information as to the contracts, default letters and information regarding change orders. As such,
the Court finds that Mr. Cozza’s affidavit complies with Federal Rule of Civil Procedure 56(c)(4).
For the reasons stated, Defendants’ Motion to Strike or to weigh lightly Mr. Cozza’s affidavit is
DENIED.
ii. 	Peter Radice Affidavit
Defendants argue that Mr. Radice’s affidavit similarly lacks foundation by alleging that the
basis for his personal knowledge in the affidavit is: (1) his role as Chief Operations Officer for
LPR during LPR’s involvement in the Project; and (2) that he is currently serving in the role.
1 While Defendants reference Mr. Cozza’s deposition in their Suggestions in Opposition (Doc. 106, page 69) they
have failed to provide an exhibit or copy of Mr. Cozza’s deposition with their Suggestions in Opposition. As such the
Court is unable to review Mr. Cozza’s deposition.
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Defendants argue that his affidavit talks about issues related to alleged defaults by Doing Steel,
the Contreras work, letters received from Doing Steel regarding change orders, and generally, the
alleged “uncontroverted” nature of Doing Steel’s defaults which he has no foundation.
The Court finds that Mr. Radice’s affidavit is made from his personal knowledge, sets out
facts that would be admissible evidence and shows that he is competent to testify on the matters
stated. Here, Mr. Radice’s affidavit states:
I served as chief operations officer for [LPR] during the time LPR was involved in
the Walmart ACT Center Project in Bentonville, Arkansas (“the Project”), and
currently serve in that same role. As such, I have personal knowledge of the facts
set forth in this affidavit.
(Doc. 93-3, page 2, ¶ 1). Defendants are correct that Mr. Radice opines about issues related to
alleged defaults by Doing Steel, the Contreras work, letters received from Doing Steel regarding
change orders, and generally, the alleged “uncontroverted” nature of Doing Steel’s defaults.
However, Mr. Radice expressly confirms his personal knowledge on the subjects in the affidavit
and it is reasonable to conclude that the Chief Operations Officer would have personal information
about issues related to alleged defaults by Doing Steel, the Contreras work, letters received from
Doing Steel regarding change orders, and generally, the alleged “uncontroverted” nature of Doing
Steel’s defaults. As such, the Court finds that Mr. Radice’s affidavit complies with Federal Rule
of Civil Procedure 56(c)(4). For the reasons stated, Defendants’ Motion to Strike or to weigh
lightly Mr. Radice’s affidavit is DENIED.
B. 	Counterclaim Count I – Breach of Contract – LPR
i. 	First Material Breach of Contract
LPR/Berkshire argue that they are entitled to summary judgment on Counterclaim Count I
– Breach of Contract – LPR because the undisputed facts establish that Doing Steel was first to
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materially breach the contract between LPR and Doing Steel. Specifically, LPR/Berkshire argue
that Defendant Doing Steel failed to make full payment to LPR in September of 2022 and persisted
into 2023. Further, LPR/Berkshire assert that Defendant Doing Steel was required to provide LPR
written notice and two working days’ opportunity to cure any purported contractual deficiencies
or breach but did not provide such notice to LPR until April 27, 2023.
Defendants argue that LPR breached the contract first. Defendants argue that Doing Steel’s
Subcontract with LPR has a pay if paid clause that Doing Steel agrees to pay LPR if and to the
extent paid by owner, for satisfactory performance of LPR’s work. Defendants argue that by the
time payment could have hypothetically been due to LPR in late January 2023, Doing Steel had
already put LPR on notice of a pending delay back charge from McCownGordon (“McCown”),
the general contractor, in excess of $700,000 and the supplemental works had been performing
work on the Project as a supplemental crew to LPR, which LPR was aware. Defendants assert that
the amount of these potential backcharges more than outweighed the payment Doing Steel had
received for the erection scope of work under its contact with McCown.
Here, the Subcontract Agreement states:
Contract Payment. The Contractor agrees to pay Subcontractor if and to the extent
paid by owner. … Progress payments, less retainage of 10% shall be made to
Subcontractor for Work satisfactorily performed, after receipt by Contractor of
payment from Owner for Subcontractor’s Work and fully executed partial lien
waivers as required.
(Doc. 93-1, Article 1). The Court finds that the Subcontract Agreement had a “pay if paid”
provision that is clear and unequivocal and dictates payments as shown above. The
Subcontract Agreement further states:
Failure of Performance & Termination. Should Subcontractor fail to satisfy
contractual deficiencies within two (2) working days from receipt of Contractor’s
written notice, then the Contractor, without prejudice to any right or remedies, shall
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have the right to take whatever steps it deems necessary in its sole and absolute
discretion to correct said deficiencies, including hiring third party contractors, and
charge the cost thereof to Subcontractor, who shall be liable for payment of same,
including reasonable overhead, profit and attorneys fees.
Should the Subcontractor fail at any time to supply a sufficient number of properly
skilled workmen or sufficient materials and equipment of the proper qualify or fail
in any respect to prosecute the Work with promptness and diligence, or fail to
promptly correct defective Work or fail in the performance of any of the agreements
herein contained, the Contractor may, at its option, perform the Sub-contractor’s
obligations and utilize the Subcontractor’s equipment and materials on the job site
in connection therewith. The Contractor may also provide such labor, materials
and equipment and deduct the cost thereof, together with all loss or damage
occasioned thereby, from any money then due or thereafter to become due to the
Subcontractor under this Agreement or any other agreements. If such expense &
damages exceed such unpaid balance, the Subcontractor shall promptly pay the
difference to the Contractor. In the event of the Subcontractor’s noncompliance
with any portion of this Subcontract, the Contractor or Owner may cancel,
terminate, or suspend this Contract.
(Doc. 93-1, Article 5) (emphasis added).
The Court finds Defendant Doing Steel did not breach the contract based on the partial
payment for work done during the September 2022 time period and withholding of pay into 2023.
As recited above, the Subcontract Agreement allowed Doing Steel to bring in additional labor or
materials should LPR fail to prosecute the work with promptness and diligence or fail to correct
defective work or fail in the performance of the Subcontract Agreement. The evidence shows
Goliath Pipeline and Contreras Steel was brought in, in part, to assist LPR’s scope of work due to
delays and quality of 	work issues, causing delay. (Docs. 106-37, 106-38). Doing Steel
subsequently withheld payment due to payment for the extra labor and the projected losses from
the delay to the project. (Docs. 93-3, 106-3). By virtue of the Subcontract Agreement, Doing Steel
had the right to “deduct the cost thereof, together with all loss or damage occasioned thereby, from
any money then due or thereafter to become due to the Subcontractor under [the] Agreement.”
(Doc. 93-1, Article 5) (emphasis added). The Court finds that Defendants did not breach the contact
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from withholding of payment to LPR. For the reasons stated, LPR/Berkshire’s Motion for
Summary Judgment on Doing Steel’s Counterclaim Count I – Breach of Contract – LPR and
affirmative defenses of setoff, prior material breach and material breach of contract by LPR based
on a first material breach of contract are DENIED.
ii. 	Notice and Opportunity to Cure
LPR/Berkshire assert that Defendant Doing Steel was required to provide LPR written
notice and two working days’ opportunity to cure any purported contractual deficiencies or breach
but did not provide such notice to LPR until April 27, 2023.Defendants argue that the Subcontract
Agreement does not require notice and opportunity to cure for the damages Doing Steel seeks, and
regardless, LPR was fully informed about its defaults and given countless opportunities to cure its
delayed performance. Specifically, Defendants argue that Doing Steel and McCown provided
numerous written communications in October and November 2022 regarding the consequences of
LPR not meeting the September 29, 2022, schedule. Defendants argue that LPR had more than
enough opportunities to cure these defaults but failed to do so which necessitated both Doing Steel
procuring and paying for supplemental labor, and McCown imposing Change Order 19 on Doing
Steel.2
The Court finds that the Subcontract Agreement does impose a notice and opportunity to
cure requirement and that Defendant Doing Steel has satisfied that requirement in the current
action. In reading the plain language of the Subcontract Agreement, Article 5 states:
Failure of Performance & Termination. Should Subcontractor fail to satisfy
contractual deficiencies within two (2) working days from receipt of Contractor’s
written notice, then the Contractor, without prejudice to any right or remedies, shall
2 Change Order 19 was a letter sent from McCown to inform Defendant Doing Steel of deductive charge based upon
delays in the project. (Doc. 106-53). This change order informed Doing Steel that it was deducting a total amount of
$1,138,815.00.
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have the right to take whatever steps it deems necessary in its sole and absolute
discretion to correct said deficiencies, including hiring third party contractors, and
charge the cost thereof to Subcontractor, who shall be liable for payment of same,
including reasonable overhead, profit and attorneys fees.
(Doc. 93-1, Article 5). While Defendants attempt to assert that Article 5 does not provide a notice
and opportunity to cure requirement, the Court cannot disregard the plain language set forth in the
Subcontract Agreement. Further, the Court finds that Defendant Doing Steel provided notice and
an opportunity to cure. The submitted exhibits show that Doing Steel repeatedly informed LPR
regarding the completion of the project as reflected in the September 29, 2022, schedule. (Docs.
106-34, 106-37, 106-40). These exhibits show that LPR was aware of the need to have more
manpower and the need to complete their scope of work by the deadlines. Id; see also Doc. 106-
42. Eventually, McGown, the lead contractor, sent a Letter of Default to Doing Steel regarding
the adverse implications from being behind schedule. (Doc. 106-43). Doing Steel forwarded that
Letter of Default to LPR informing them of adverse impacts regarding the current delays and
putting it on notice of adverse consequences of further delays. (Doc. 106-44). LPR had notice of
needing to complete their scope of work by the deadlines identified in the September 29, 2022,
schedule and repeated changes to cure that failure by bringing the project up to date but was unable
to do so. For the reasons stated, LPR/Berkshire’s Motion for Summary Judgment on Doing Steel’s
Counterclaim Count I – Breach of Contract – LPR and affirmative defenses of setoff, prior material
breach and material breach of contract by LPR based on failure to give notice and an opportunity
to cure are DENIED.
iii. 	Calculation of Offset Damages and Counterclaim Damages
LPR/Berkshire argue that the back charge claims of Doing Steel employ a discredited
method of total cost analysis and Doing Steel seeks to pass on all delay charges incurred by Doing
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Steel and all costs incurred by Doing Steel arising from its separate contract Contreras Steel
without regard to fault or responsibility and thus cannot establish a claim for damages. Defendants
argue that Doing Steel’s damage calculation and apportionment is a factual issue. Defendants
argue that they have set forth facts establishing the damages due to LPR’s failure to meet the
September 29, 2022, schedule which LPR disagrees.3 Defendants further argue that Doing Steel
has set forth genuine issues of material fact regarding LPR’s liability for these delay damages.
Defendants asset that LPR admits that it did not meet the September 29, 2022, schedule, and
despite claiming that there were material delivery delays caused by Doing Steel, LPR cannot point
to daily reports or other e-mails noting significant disruptions or lost days of work.
The Court finds the amount of damages in dispute are genuine issues of material fact.
Defendants have provided evidence of the damages caused by delays to the September 29, 2022,
schedule. (Doc. 106-53, pages 2, 24 and 36). However, Defendant Doing Steel and LPR assert
issues of material fact arguing who is responsible for the damages as shown between Change Order
19, the deductive charge from McGown to Doing Steel, and the supplemental labor costs.
LPR/Berkshire argue that Doing Steel is attempting to push all the damages noted in Change Order
19 onto LPR without taking their share of the delays. LPR/Berkshire further argue that
supplemental work by Goliath was there in part to work on field fabrication and field fabrication
fixes, which was not in LPR’s scope of work, nor did Doing Steel separate out the work Contreras
did in LPR’s scope of work compared to that of Doing Steel’s scope of work. (Doc. 109-1, page
4). 	As there are genuine issues of material fact as to the damages and how much each party is
3 Doing Steel states it has set forth facts that establish: (1) McCown backcharged Doing Steel for $1,051,344 for the
delay claim in Change Order 19 which was the responsibility of LPR due to their failure to meet the September 29,
2022 schedule which “wiped the slate clean” form prior delays; (2) Doing Steel paid Contreras and Goliath a total of
$2,430,989.64 for work that was supplemental to and directed by LPR; (3) Doing Steel has paid LPR $1,1237,886.19;
and (4) after conducting a reconciliation of LPR’s contract with Doing Steel, LPR owes Doing Steel $600,997.02.
(Doc. 106, page 82).
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responsible, summary judgment is not appropriate on this issue. For the reasons stated,
LPR/Berkshire’s Motion for Summary Judgment on Doing Steel’s Counterclaim Count I – Breach
of Contract – LPR and affirmative defenses of setoff, prior material breach and material breach of
contract by LPR based on calculation of offset damages and counterclaim damages are DENIED.
C. 	Counterclaim Count II – Action on Bond – Berkshire
LPR/Berkshire argue that Counterclaim Count II – Action on Bond – Berkshire fails
because Berkshire’s liability is derivative of the liability of LPR, and Berkshire cannot be liable to
Doing Steel if and to the extent that LPR is not. Defendants agree with LPR that Berkshire’s
liability to Doing Steel is co-extensive with that of its principal, LPR. Defendants argue that since
they have shown that there are material issues of fact at issue for the tier of fact to review and
determine as to Doing Stee’s Counterclaim against LPR, the same is true as to Berkshire.
The Court agrees that Berkshire’s liability is derivative of the liability of LPR. As this
Court has already ruled that LPR/Berkshire are not entitled to summary judgment as to Doing
Steel’s affirmative defenses or Counterclaim I – Breach of Contract, the Court concludes that
Berkshire is likewise not entitled to summary judgment as to Doing Steel’s Counterclaim Count
II. For the reasons stated, LPR/Berkshire’s Motion for Summary Judgment as to Counterclaim
Count II – Action on Bond – Berkshire is DENIED.
CONCLUSION
I. 	Defendants’ Motion for Partial Summary Judgment
For the reasons stated, Defendants’ Motion for Summary Judgment as to Plaintiff’s Count
II – Quantum Meruit claim is GRANTED. Summary judgment as to Plaintiff’s Count II –
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Quantum Meruit is entered in favor of Defendants. Defendants’ Motion for Summary Judgment
on Count IV - Claim Against Nationwide Under Lien Release Bond based upon the just and true
account requirement in Ark. Code Ann. § 18-44-117 is DENIED. Defendants’ Motion for
Summary Judgment on Count IV - Claim Against Nationwide Under Lien Release Bond based
upon the requirements of Ark. Code Ann. § 18-44-115 is DENIED.
II. 	LPR/Berkshire’s Joint Motion for Partial Summary Judgment
For the reasons stated, Defendants’ Motion to Strike or to weigh lightly Mr. Cozza’s
affidavit is DENIED. Defendants’ Motion to Strike or to weigh lightly Mr. Radice’s affidavit is
DENIED. LPR/Berkshire’s Motion for Summary Judgment on Doing Steel’s Counterclaim Count
I – Breach of Contract – LPR and affirmative defenses of setoff, prior material breach and material
breach of contract by LPR based on a first material breach of contract are DENIED.
LPR/Berkshire’s Motion for Summary Judgment on Doing Steel’s Counterclaim Count I – Breach
of Contract – LPR and affirmative defenses of setoff, prior material breach and material breach of
contract by LPR based on failure to give notice and an opportunity to cure are DENIED.
LPR/Berkshire’s Motion for Summary Judgment on Doing Steel’s Counterclaim Count I – Breach
of Contract – LPR and affirmative defenses of setoff, prior material breach and material breach of
contract by LPR based on calculation of offset damages and counterclaim damages are DENIED.
LPR/Berkshire’s Motion for Summary Judgment as to Counterclaim Count II – Action on Bond –
Berkshire is DENIED.
IT IS SO ORDERED.
Date: February 10, 2026
/s/ Douglas Harpool______________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
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