Opinion
IP 99-1575-C-T/G
September 6, 2001
ENTRY ON DEFENDANT'S MOTION TO RECONSIDER
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Plaintiff, Envirocorp Well Services, Inc. ("Envirocorp"), sued Defendant, Camp Dresser McKee, Inc. ("CDM"), alleging that CDM failed to pay Envirocorp for work completed on a written subcontract. On June 29, 2000, Envirocorp moved for summary judgment on its claim against CDM. On October 25, 2000, this court entered summary judgment in favor of Envirocorp. CDM now moves for reconsideration of that decision and for denial of summary judgment.
Although the current motion before the court is one for reconsideration, should that motion be granted this case would again be before the court on Envirocorp's motion for summary judgment. Accordingly, in this current motion all facts will be considered in the light most favorable to the non-movant, CDM, and all inferences are resolved in the CDM's favor. See, e.g., Simpson v. Borg-Warner Automotive, 196 F.3d 873, 876 (7th Cir. 1999); FED. R. CIV. P. 56(c).
The undisputed material facts of this case have not changed since the court's October 25, 2000, Entry. Accordingly, the facts as set forth therein are hereby incorporated into this Entry and are repeated immediately below.
In March 1996, CDM entered into an agreement with the State of Indiana, acting by and through the Indiana Department of Environmental Management ("IDEM"), to assist IDEM by providing certain remedial investigations, site characterizations and corrective action services. On or before May 21, 1998, CDM received Supplement No. 15 to the agreement. Pursuant to Supplement No. 15, CDM agreed to provide a number of services for a deep well injection system and contaminated soil remediation or removal system to remedy salt contamination of groundwater near the Indiana Department of Transportation's ("INDOT") Valparaiso facility. Mark Burgess was CDM's project manager and project engineer on the Valparaiso project.
On or about June 26, 1998, CDM entered into a subcontract with Envirocorp under which Envirocorp agreed to perform a number of services for the deep well injection system in connection with Supplement No. 15. CDM agreed to compensate Envirocorp for these services. The provisions of the subcontract that are relevant to the current dispute were drafted by CDM. Exhibit C to the subcontract listed 15 "milestones" and the itemized cost of each milestone. Upon completion of each milestone, the subcontract instructed Envirocorp to submit an invoice to CDM for the cost of the milestone.
By letter dated June 25, 1998, CDM authorized Envirocorp to proceed with Phase I of the project, specifically including milestones 1 through 8. Envirocorp completed milestones 1 through 6 and received the payments due for completing those tasks. Under milestone 7, Envirocorp was to complete the evaluation of bids and selection of preferred subcontractors. Under milestone 8, Envirocorp was to complete the preparation of sample purchase orders. On or before March 17, 1999, Envirocorp completed the tasks described by milestones 7 and 8, but has not received payment for the services performed in connection with those milestones. The cost listed in Exhibit C for completion of milestone 7 is $60,000 and for completion of milestone 8, $30,000.
CDM does not dispute that Envirocorp completed the tasks described by milestones 7 and 8, nor does it dispute that Envirocorp was not paid for such work. Rather, CDM asserts that while Envirocorp may have done the work described by milestone 7, it did not do that work for the purpose of completing milestone 7, and that Envirocorp's work on milestone 8 was deficient.
Envirocorp submitted an invoice, dated March 17, 1999, to CDM for payment of $60,000 due on milestone 7. The description section of the invoice reads, "Completion of Milestone Task No. 7 Complete Evaluation of bids and selection of preferred Subcontractors." On or about May 13, 1999, Mr. Burgess made an approval notation on the invoice, and on or about June 4, 1999, CDM submitted the invoice to IDEM for payment. Envirocorp submitted another invoice, also dated March 17, 1999, to CDM for $30,000, the cost of milestone 8. That invoice stated, "Completion of Milestone Task No. 8 Complete Preparation of sample Purchase Orders." On or about March 31, 1999, Mr. Burgess made an approval notation on this invoice, and on or about April 13, 1999, CDM submitted this invoice to IDEM for payment. In a letter dated August 31, 1999, IDEM rejected both invoices, noting that "CDM in subcontracting with Envirocorp apparently acted independently and in direct contradiction to both the oral and written direction of the IDEM staff." (Letter from Mary Beth Tuohy to Mr. Burgess). CDM has not paid Envirocorp for the invoices relating to milestones 7 and 8.
Envirocorp's Material Fact No. 28 states that the CDM submitted this invoice to IDEM on "June 4, 1000." (Pl.'s Statement of Material Facts No. 28). CDM does not object. The court assumes that this was a typographical error and the correct date is June 4, 1999.
Mr. Burgess maintains that the approval notations on the payment invoices for the work performed under milestones 7 and 8 were merely internal notes to the CDM accounting department to include the invoices on CDM's next invoice to IDEM. Mr Burgess maintains that he did not approve the invoices for payment or approve the work reflected in the invoices.
The subcontract states:
5.3.1 Upon completion of each of the fifteen (15) milestones described on Exhibit `C' attached hereto, but not more frequently than once a month, SUBCONTRACTOR shall submit an invoice to Engineer [sic] in the amount of the corresponding dollar value opposite the milestone on Exhibit `C'. Any Additional Services authorized in writing by the ENGINEER and undertaken by the SUBCONTRACTOR shall be billed monthly at the rates set forth on Schedule I to Exhibit `A' or as otherwise approved by ENGINEER. If ENGINEER objects to any statement submitted by SUBCONTRACTOR, ENGINEER shall so advise SUBCONTRACTOR in writing giving reasons therefor within fourteen (14) days of receipt of such statement. If no such objection is made, the statement will be considered acceptable by ENGINEER.
(Subcontract ¶ 5.3.1). CDM did not advise Envirocorp in writing within fourteen days of receiving the invoices that it objected to either invoice, nor did CDM advise Envirocorp of any reasons it may have had for objecting to the invoices.
CDM responds to these facts, as set forth by Envirocorp, with the following:
CDM structured the subcontract agreement so that there would not be anything to object to on Envirocorp's invoices. The subcontract agreement was structured so that Envirocorp would not be required to submit backup or supporting documentation with its pay requests for each milestone. This was specifically done to facilitate processing of the CDM, and consequently Envirocorp, invoices by IDEM. Immediately upon receiving IDEM's rejection of Envirocorp's Invoices [for milestones 7 and 8], CDM notified Envirocorp.
(Def.'s Resp. to Pl.'s Statement of Material Facts Nos. 30 31). This response is not an objection to the facts set forth by Envirocorp. While the response may set forth a reason for CDM's lack of written objection, it does not dispute the facts as set forth by Envirocorp. Therefore, these facts are deemed admitted.
The final invoice, dated June 11, 1999, that is subject to this dispute was submitted to CDM for additional services rendered by Envirocorp. While it is disputed whether these services were authorized as additional services, it is not disputed that Mr. Burgess made some sort of approval notation on the invoice. CDM did not advise Envirocorp in writing that it objected to the invoice within the requisite fourteen days from CDM's receipt of the invoice. The invoice was forwarded to IDEM for payment.
Again, Mr. Burgess asserts that the approval notation was merely an internal note to the CDM accounting department to include the Envirocorp invoice on CDM's next invoice to IDEM, not an approval of the invoice for payment nor an approval of the work reflected in the invoice.
Although CDM, in its response to Envirocorp's Material Fact No. 45, states, "CDM objected to the change order request and invoice," CDM presents no evidence that it objected in writing to the invoice. (Def.'s Resp. to Pl.'s Statement of Material Facts No. 45). In fact, CDM concedes that it made a notation of approval on the invoice. (Burgess Aff. ¶ 30).
On March 15, 2000, CDM received a check from IDEM for $42,000. The check referenced CDM's invoice to IDEM that included Envirocorp's additional services invoice to CDM. The subcontract provides that CDM shall pay Envirocorp within fifteen days of the time CDM receives payment from IDEM for Envirocorp's services. (See Subcontract ¶ 5.3.2). CDM has not paid Envirocorp for the work reflected on the invoice. Envirocorp has outstanding payment invoices to CDM in the amount of $132,000.
II. DISCUSSION
A. Statement of Jurisdiction
This court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Envirocorp is a Texas corporation with its principal place of business in Texas, (see Compl. ¶ 1), and thus a resident of Texas for the purpose of determining whether diversity exists, see Ancho v. Pentek Corp., 157 F.3d 512, 514 n. 5 (7th Cir. 1998) (citing Casio, Inc. v. S.M. R. Co., 755 F.2d 528, 529 (7th Cir. 1985) ("For purposes of federal diversity jurisdiction, a corporation is (with an immaterial exception) a citizen both of the state (or states) in which it is incorporated and the state in which it has its principal place of business.") (citing 28 U.S.C. § 1332(c))). CDM is a Massachusetts corporation with its principal place of business in Massachusetts, (see id. ¶ 2; Answer ¶ 2), and is thus a resident of Massachusetts, see Ancho, 157 F.3d at 514 n. 5. Both corporations were duly authorized to conduct business in Indiana (see Compl. ¶¶ 1-2; Answer ¶ 2), and the actions giving rise to this suit substantially occurred in Indiana. Finally, the amount in controversy exceeds the sum of seventy-five thousands dollars. See 28 U.S.C. § 1332(a).
B. Grounds for Reconsideration
A motion to reconsider is appropriate where "`the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court.'" Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va. 1983)). However, "[s]uch problems rarely arise and the motion to reconsider should be equally rare." Id. Moreover, motions for reconsideration should not "serve as the occasion to tender new legal theories for the first time." Manor Healthcare Corp. v. Guzzo, 894 F.2d 919, 922 n. 4 (7th Cir. 1990) (quotation omitted).
Although CDM does not clearly articulate which ground for reconsideration it is relying upon in petitioning this court to reconsider its grant of summary judgment in favor of Envirocorp, it can be reasonably inferred from CDM's arguments that CDM is of the view that the court misunderstood its arguments made in opposition to summary judgment. As will be more fully discussed below, the court did not misunderstand CDM's arguments in that regard. However, the court, in light of the fact that CDM may believe that it was denied its day in court, will give CDM the benefit of the doubt and reconsider its summary judgment holding. Specifically, the court will revisit the arguments that CDM made in its opposition to summary judgment (which, notably, are the same arguments that CDM makes in its brief in support of its motion to reconsider) and make clear why those arguments were rejected.
C. Summary Judgment Standard
Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See, e.g., Liu v. T H Mach., Inc., 191 F.3d 790, 794 (7th Cir. 1999) (citations omitted); FED. R. CIV. P. 56(c). "The burden is on the party moving for summary judgment to demonstrate the absence of a `genuine issue as to any material fact.'" Filipovic v. K R Express Sys., Inc., 176 F.3d 390, 395 (7th Cir. 1999) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "The non-moving party may not rest only upon the allegations set forth in the pleadings, but must come forward with specific facts sufficient to raise a genuine issue for trial." Liu, 191 F.3d at 794-95 (citation omitted). "However, neither presenting a scintilla of evidence, nor the mere existence of some alleged factual dispute between the parties or some metaphysical doubt as to the material facts, is sufficient to oppose a motion for summary judgment." Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000) (citations omitted). The evidence must be considered in light most favorable to the non-moving party, and all inferences are to be drawn in favor of the non-movant. See Doherty v. Davy Songer, Inc., 195 F.3d 919, 925 (7th Cir. 1999) (citations omitted).
D. Breach of Contract
In its supporting brief for its motion to reconsider, CDM argues that numerous material factual issues are in dispute which compel the denial of Envirocorp's motion for summary judgment. Specifically, CDM asserts that the following issues are in dispute:
"• whether or not Envirocorp was authorized to perform the work described by milestones 7 and 8;
• whether or not there was a change to the subcontract agreement deleting milestones 7 and 8 from the scope of Envirocorp's work;
• whether or not Envirocorp performed the work described by milestone 7 or milestone 8;
• if Envirocorp did perform the work described by milestones 7 and 8, whether or not Envirocorp performed the work described by milestones 7 and 8 prior to the work being deleted from the scope of its subcontract work;
• whether or not Envirocorp's invoice for milestone 7 was for work performed on another project and not under its subcontract agreement with CDM;
• whether or not CDM ordered a modification to the subcontract agreement with Envirocorp to provide for remote monitoring and remote control of the remediation systems and to include a separate building to house the surface facilities for the injection well;
• if there was such a modification, whether or not there was an agreement on the price of that modification; and, [sic]
• whether or not there was a written change order for that modification as required by the subcontract agreement."
(Def.'s Br. in Supp. at 2-3.) CDM argues that if the court considers these facts in light most favorable to CDM, as it must, then summary judgment as a matter of law in favor of Envirocorp is not appropriate.
In footnote 11 in its October summary judgment Entry, this court noted these arguments and rejected them. Specifically, the court wrote in part:
As noted [above], because the court concludes that CDM accepted all of Envirocorp's invoices subject to this dispute and thus forfeited its right to object to those invoices, the court need not reach the majority of arguments set forth by CDM in opposition to summary judgment. These arguments include: that the subcontract was orally modified and the work described by milestones 7 and 8 deleted, that the work described in the milestone 7 invoice was not completed for the purpose of satisfying that milestone, that Envirocorp's work under milestone 8 was deficient, that CDM did not authorize the work described in the invoice submitted for additional services rendered, and that Envirocorp is not dentitled to the entire $42,000 reflected in the additional services invoice because CDM incurred expenses for which it is entitled to recover in negotiating for payment from IDEM on Envirocorp's behalf.
(Oct. 25, 2000 Entry at 13 n. 11.)
CDM correctly recognizes that in entering summary judgment, the court relied heavily upon section 5.3.1 of the subcontract which requires CDM to advise Envirocorp in writing that it objects to an invoice within fourteen days of receiving the invoice, otherwise the invoice will be considered acceptable to CDM. (See Subcontract ¶ 5.3.1.) However, CDM incorrectly argues here that the court, before applying section 5.3.1, must have "made three very critical findings on disputed issues of material fact: (1) that Envirocorp was authorized to perform the work contemplated by milestones 7 and 8; (2) that the work contemplated by milestones 7 and 8 was not deleted from Envirocorp's scope of work; and then (3) that Envirocorp did indeed perform that work." (Def.'s Br. in Supp. at 3.) The court, in fact, need not make any of those finding before applying section 5.3.1, and consequently finding, as a matter of Indiana law, in favor of Envirocorp. Accordingly, even if the facts were entirely as CDM submits them — which the court considers them to be for the purpose of deciding this summary judgment motion — Envirocorp still is entitled to summary judgment as a matter of law.
A brief comment is warranted on the third "material fact" stated in this sentence. In the Facts section above, the court states as undisputed that Envirocorp completed the tasks described by milestones 7 and 8. In a footnote immediately thereafter the court qualifies this Fact. Now, in its brief in support of its motion to reconsider, CDM asserts that it does dispute (and has done so all along) that Envirocorp completed this work and cites to its responses to Envirocorp's requests for admissions, CDM's responses to Envirocorp's statement of material facts and paragraphs of Burgess' affidavit. It is not necessary for the court to address this issue. However, even if the court were to address it on its merits such a discussion would be entirely academic as the court's holding on Envirocorp's motion for summary judgment would be the same regardless of whether Envirocorp did or did not complete the work described in milestones 7 and 8. (See discussion below.) Therefore, all in all, resolution of this fact is not material to the outcome of this litigation.
CDM, in support of its argument that the court must find these disputed facts in favor of Envirocorp before granting summary judgment for Envirocorp, maintains that the invoices submitted for work completed on milestones 7 and 8 are not subject to the subcontract because that work was not authorized by the subcontract. Consequently, section 5.3.1 has no effect and should not be considered. Envirocorp responds that this reasoning is circular. One purported purpose of section 5.3.1 is to allow CDM time to object to invoices which it considers objectionable. For instance, under the terms of section 5.3.1 CDM has fourteen days to object to any invoice on the ground that the invoice submitted describes work done that is not contained in the subcontract. If it were possible to successfully argue that section 5.3.1 were not applicable when the work described in the invoice fell outside the scope of the subcontract, section 5.3.1 would be meaningless as CDM would be able to argue that any work which is objectionable is not covered by section 5.3.1 because the work is outside the scope of the subcontract. To render this section meaningless would be contrary to Indiana contract law and is thus impermissible. Indiana law is clear that when interpreting a contract, the contract must be read as a whole, "and the language construed so as not to render any words, phrases, or terms ineffective or meaningless." Crawford County Cmty. Sch. Corp. v. Enlow, 734 N.E.2d 685, 690 (Ind.Ct.App. 2000) (citations omitted); see also Eskew v. Cornett, 744 N.E.2d 954, 2001 WL 180495, at *2 (Ind.Ct.App. 2001) (same) (citing id.). Thus, this court refuses to render section 5.3.1 meaningless and will apply its terms.
Neither party opposes the application of Indiana law or argues that any other state's law should be applied. In fact, in their original summary judgment arguments both parties cited and argued Indiana contract law. Accordingly, as the court did in its summary judgment Entry, the court will again apply Indiana law, as the parties apparently wish it to do, without further discussion.
For the reasons stated above, section 5.3.1 applies and the court's analysis regarding the application of that section contained in its October 25, 2000, Entry is complete and has not changed, and is incorporated herein.
This analysis also applies to the disputed $42,000 invoice. In its brief in support of its motion to reconsider, CDM argues that before holding CDM accountable for the amount due on this invoice, the court must first determine that "there was an order directing the modification, that there was an agreement on the scope of the work covered by the modification, and that there was an agreement on the consideration for this modification[,]" which, CDM submits, are disputed factual issues. (Def.'s Br. in Supp. at 11.) For the same reasons discussed above, the court does not have to find these facts in favor of Envirocorp before enforcing section 5.3.1. Rather, as above, the exact opposite is true. Even assuming these facts were exactly as CDM submits, under Indiana law section 5.3.1 would still require a decision as a matter of law in favor of Envirocorp.
E. Defendant's Supplement to Its Motion to Reconsider
One final matter is left for the court to address. CDM, after it filed its motion to reconsider and brief in support and after Envirocorp filed its response thereto, filed a Supplement to Defendant's Motion to Reconsider in which CDM argues that section 6.1.2 and 6.1.3 of the subcontract act as a bar to Envirocorp's recovery in this case. Section 6.1.2 of the subcontract provides:
This Agreement will terminate automatically upon termination of the Prime Agreement.
(Subcontract ¶ 6.1.2.) Section 6.1.3 provides:
In the event of any termination, and if ENGINEER has received an acceptable statement from SUBCONTRACTOR, SUBCONTRACTOR will be paid on the basis shown in Exhibit A "Description of Basic Subcontractor Services and Related Matters" for all unpaid Basic Services and Additional Services performed to the date of termination. SUBCONTRACTOR shall be paid for time and materials in accordance with Schedule I, Exhibit A for partially completed milestones up to the date of termination. ENGINEER shall not be obligated to pay SUBCONTRACTOR any other termination expenses.
(Id. ¶ 6.1.3.) Envirocorp, for good reason, submits that the court reject such supplement.
As stated above, motions for reconsideration should not "serve as the occasion to tender new legal theories for the first time." Manor Healthcare, 894 F.2d at 922 n. 4 (quotation omitted). The first time CDM argued the effect of these sections is in its supplement to its motion to reconsider. On that ground alone, it would appropriate for this court to summarily dismiss CDM's new argument. However, because it can possibly be construed that CDM is not making a new argument, but is rather lending additional support to an argument it has made from the beginning — namely, that the work described by milestones 7 and 8 was deleted before the work was performed, thus precluding Envirocorp from payment on the invoices submitted for that work — and because the outcome is the same whether the court dismisses or addresses this argument, the court hesitantly addresses the merits of CDM's "supplement."
The court notes that Envirocorp, by filing a response to CDM's supplement, had the opportunity to address CDM's argument made therein. Therefore, the court's decision in this case to address CDM's new argument is not inherently unfair to Envirocorp.
As is evident from the court's summary judgment Entry, this case boils down to a matter of contract interpretation. Under Indiana law, the rules of contract interpretation at issue here are clear. When contract language is clear and unambiguous, the words contained therein should be given their plain, usual and ordinary meaning; no words, phrases or terms are to be rendered ineffective or meaningless. See Crawford County, 734 N.E.2d at 690. The test to determine whether a contract is ambiguous "is whether reasonable men would differ as to the meaning of its terms." Boswell Grain Elevator, Inc. v. Kentland Elevator Supply, Inc., 593 N.E.2d 1224, 1227 (Ind.Ct.App. 1992). If no ambiguities exist, a court is to apply the contractual provisions; the terms of the contract are conclusive and a court is not to construe the contract nor look at extrinsic evidence. See Crawford County, 734 N.E.2d at 690. If there exists an ambiguity in a contract "because of the language used in the contract and not because of extrinsic facts, its construction is purely a question of law[.]" Boswell, 593 N.E.2d at 1227. And, finally, "[a]n ambiguous contract will be construed against the party who drafted it." Id.
CDM argues that because of the existence of section 6.1.2 and because IDEM canceled the portion of the prime agreement which called for the work to be completed in milestones 7 and 8 before Envirocorp began the work described by those milestones, those milestones were terminated from Envirocorp's scope of work and Envirocorp is not entitled to payment under the subcontract. CDM, however, in making this argument fails to consider the import of section 7.3. That section provides:
This Agreement (consisting of pages 1 to 8, inclusive) together with the Exhibits identified above constitute the entire agreement between ENGINEER and SUBCONTRACTOR and supersede all prior written and oral understandings. This Agreement and said Exhibits and schedules may only be amended, supplemented, modified or canceled by a duly executed written instrument.
(Subcontract ¶ 7.3) (emphasis added). Therefore, it could be said that an ambiguity exists in the subcontract. On the one hand, section 6.1.2 provides that if the prime contract is canceled, then the subcontract automatically terminates. On the other hand, section 7.3 provides that the subcontract can only be canceled by a written instrument. The question is, thus, which subsection is controlling, i.e., which subsection trumps the other.
As stated above, ambiguities in contract language are to be resolved as a matter of law and are to be resolved against the party who drafted the contract, in this case CDM. See Boswell, 593 N.E.2d at 1227. This court holds that section 7.3 trumps section 6.1.2.
For were the opposite conclusion reached, section 7.3 would be rendered meaningless if the prime agreement was terminated. No requirement would exist for CDM to notify Envirocorp of such cancellation. That result is clearly contradictory to the spirit of section 7.3. Additionally, to construe section 6.1.2 as trumping section 7.3 would be to resolve the ambiguity in favor of CDM, which would be contrary to Indiana law. The following example illustrates this effect: it is conceivable that the prime agreement could be terminated, thereby automatically terminating the subcontract, without Envirocorp's knowledge; Envirocorp could subsequently submit an invoice for completed work; CDM could fail to object to the invoice within fourteen days as required by section 5.3.1; but, despite complying with its requirements under the subcontract, Envirocorp would have no recourse against CDM under the subcontract should CDM refuse to pay the invoice, because under section 6.2.1 the subcontract would have been terminated. Thus, to resolve the ambiguity in the manner inferred by CDM would be contrary to Indiana law in that the resolution would clearly favor the party who drafted the contract. And, finally, section 7.3 is the final provision of the subcontract. It is therefore logical to conclude that CDM in drafting the subcontract intended that provision to apply to every previously stated provision, including section 6.1.2.
Thus, the subcontract is only properly canceled by "a duly executed written instrument." Neither party has made the court aware of any evidence that the subcontract was canceled by a written instrument. The only evidence of cancellation of the subcontract is Burgess' testimony that on February 9, 1999, after receiving a call from IDEM, he telephoned Richard T. Brown, Director of Environmental Projects for Envirocorp, and informed him that "the construction of the Project work would be advertised and awarded by INDOT under an emergency procurement[,]" effectively deleting from the subcontract the work to be completed under milestones 7 and 8. (Burgess Aff. ¶¶ 13-14.) Accordingly, because section 7.3 requires a written instrument to effect a cancellation of the subcontract, and there is no evidence of such a written instrument, the contract was not canceled by CDM on February 9, 1999, as it submits, and section 5.3.1 was in full force and effect when CDM approved the invoices at issue. Therefore, by the reasoning articulated in the court's October 25, 2000, Entry, summary judgment in favor of Envirocorp is appropriate.
III. CONCLUSION
For the foregoing reasons, Defendant's motion to reconsider is GRANTED, and Defendant's motion for leave to file supplement to Defendant's motion to reconsider is GRANTED. However, Defendant has failed to establish that the court's original grant of summary judgement was in error, and therefore, Plaintiff's motion for summary judgment is REAFFIRMED. The court will address any remaining issues in this case in a separate Entry.
ALL OF WHICH IS ORDERED this 6th day of September 2001.