Southern Coal Corporation v. Drummond Coal Sales, Inc. ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14560
____________________
SOUTHERN COAL CORPORATION,
JAMES C. JUSTICE, II,
Plaintiff-Counter Defendants-Appellee-Cross Appellants,
versus
DRUMMOND COAL SALES, INC.,
Defendant-Counter Claimant-Appellant-Cross Appellee.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-01104-WMR
____________________
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2 Opinion of the Court 20-14560
Before WILSON, LAGOA, and ED CARNES, Circuit Judges.
WILSON, Circuit Judge:
This appeal concerns a pricing dispute over a contract to
transfer and store coal between plaintiff Southern Coal Corpora-
tion (Southern Coal) and defendant Drummond Coal Sales
(Drummond). The district court found Southern Coal breached
the contract and awarded a judgment in favor of Drummond in
the amount of $6,860,000. Drummond appeals this judgment on
the ground that the district court erred in finding a price escala-
tion clause in the contract to be unenforceable. If this price esca-
lation were enforceable, then Drummond would be entitled to
even more damages under the contract for Southern Coal’s
breach. For its part, Southern Coal cross-appeals the district
court’s judgment, claiming that Drummond’s actions excused
Southern Coal’s obligation to pay Drummond under the contract.
Both parties challenge the district’s court determination not to
award attorneys’ fees to either party.
We affirm the district court’s judgment against Southern
Coal in the amount of $6,860,000. The district correctly found
that Southern Coal was not excused from performing under the
contract. Further, the district court correctly found the price esca-
lation clause unenforceable. However, we reverse on the issue of
attorneys’ fees and remand to the district court to award a rea-
sonable sum to the prevailing party, Drummond.
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I. BACKGROUND
The disputed contract in this case is called the Bulk Coal
Transfer and Storage Agreement (Agreement). Southern Coal
entered the four-year Agreement with Drummond in October
2013. Under the Agreement, Drummond would sublease port
capacity located in Newport News, Virginia to Southern Coal. In
exchange for Drummond’s services under the Agreement, South-
ern Coal agreed to transfer through Drummond’s port a mini-
mum of 2 million metric tons of coal per year and pay Drum-
mond a “minimum monthly Throughput Fee of $1,000,000.”
Southern Coal’s then-president, James C. Justice II, contempora-
neously executed a guarantee of Southern Coal’s obligations un-
der the Agreement.
Central to this dispute, § 6.14 of the Agreement provides
that the base amount for the Throughput Fee would be adjusted
upward based on increases in the “Peak Downs metallurgical
benchmark price.” “Peak Downs” refers to a mine in Australia
owned by Australian mining company BHP Billiton (BHP). BHP
is one of the leading coal exporters in Australia and produces
high-quality metallurgical coal. Metallurgical coal, often referred
to as coking coal, is a primary component of steel manufacturing.
As used here, “benchmark” refers to a negotiated price between
mining companies and Asian steelmakers. Beginning in the 1980s,
BHP would negotiate a yearly benchmark price for its high-
quality metallurgical coal with Japanese steelmakers. This
benchmark was published in industry newsletters and the price
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4 Opinion of the Court 20-14560
would serve as the market price of metallurgical coal for the year
and other coal companies would use the benchmark in negotiat-
ing their own contracts.
For more than twenty years, BHP set the yearly bench-
mark price for metallurgical coal. Around 2008, BHP announced
that it wanted to transition from a yearly negotiated benchmark
price toward a quarterly, monthly, and eventually, a daily negoti-
ated price. The last annually negotiated benchmark price was set-
tled in 2009 and by the second quarter of 2010, the industry began
using a quarterly benchmark price. When the parties entered the
Agreement in 2013, the industry was still using a quarterly
benchmark, routinely negotiated and set by BHP. However, by
the fourth quarter of 2016, BHP moved away entirely from quar-
terly pricing, which resulted in the published quarterly bench-
mark price being set by other Australian coal producers.
Starting in the fourth quarter of 2013, Drummond began
invoicing Southern Coal for the monthly Throughput Fee of $1
million. Initially, Southern Coal paid these invoices without is-
sue. During this time, the price of metallurgical coal was relative-
ly low and the price escalation clause of the Agreement had con-
sequently not been triggered. In the fourth quarter of 2016, how-
ever, the quarterly benchmark price of metallurgical coal, set by a
company other than BHP, rose to $200 per metric ton. Drum-
mond considered this price increase to trigger § 6.14 of the
Agreement. Accordingly, Drummond sent Southern Coal an in-
voice on October 25, 2016 for $1,380,000, a figure which reflected
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a $380,000 increase in the minimum monthly Throughput Fee.
Drummond invoiced Southern Coal for the same amount for
November and December 2016.
In the first quarter of 2017, the quarterly benchmark price
for metallurgical coal—as reported in industry publications—rose
again to $285 per metric ton. Accordingly, Drummond sent
Southern Coal an invoice on January 3, 2017, for $1,965,000,
which included a $965,000 increase in the minimum monthly
Throughput Fee. Southern Coal paid $1,000,000 of the invoice on
February 6, 2017, but it refused to pay the remaining $965,000.
After that payment, Southern Coal refused to pay any further in-
voices.
Southern Coal contested these invoices because it claimed
that the “Peak Downs” benchmark to which § 6.14 of the Agree-
ment referred ceased to exist as BHP was no longer setting the
quarterly benchmark price. Therefore, there was no longer a
mechanism for price adjustments under § 6.14 of the Agreement.
Southern Coal sent a letter to Drummond on March 9, 2017, de-
manding adequate assurances that Drummond would not charge
any increase to the Throughput Fee and would only charge the
minimum $1 million. Drummond sent a reply letter to Southern
Coal asserting its right to increase the Throughput Fee because §
6.14 still applied regardless of which company set the quarterly
benchmark, and that Southern Coal had no right to withhold
payments.
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Southern Coal sued Drummond and asserted claims for a
declaratory judgment and breach of contract. Drummond assert-
ed counterclaims against Southern Coal and Justice for declarato-
ry judgment, breach of contract, and breach of a corresponding
guarantee. Both parties moved for summary judgment. The dis-
trict court found that § 6.14 of the Agreement was ambiguous and
sent the issue of the meaning of the term “Peak Downs metallur-
gical benchmark price” to trial. However, the district court con-
cluded that Southern Coal was still liable for the minimum
monthly Throughput Fee of $1 million.
At a bench trial, the district court heard testimony from
both parties on the meaning of the ambiguous term. Ultimately,
the district court found that the term “Peak Downs metallurgical
benchmark price” was intended by the parties to be, specifically,
the quarterly price set by BHP for its coal that was mined from its
Peak Downs mine and sold to Japanese steelmakers. The district
court found the testimony of Dennis Steul, Drummond’s vice
president of sales and the primary negotiator of the terms of the
Agreement, to be the more credible and persuasive evidence of
the parties’ intent. Accordingly, the district concluded that § 6.14
became unenforceable when BHP ceased setting the quarterly
benchmark price for metallurgical coal. However, because the
Agreement contained a savings clause, the district court deter-
mined that the price escalation clause could be severed and the
remainder of the Agreement was valid. As a result, the district
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court granted judgment in favor of Drummond in the amount of
$6,860,000 against Southern Coal and Justice.
Drummond raises three purported errors of the district
court on appeal: (1) evidence of industry usage establishes that §
6.14 is unambiguous and therefore extrinsic evidence of the par-
ties’ intent should not have been admitted in interpreting the
Agreement; (2) instead of finding § 6.14 unenforceable, the
Agreement should have been equitably reformed to reflect the
parties’ intentions; and (3) attorneys’ fees should be awarded to
Drummond as provided for in the Agreement. On the other
hand, Southern Coal contends that the district court erred in not
finding that Drummond’s actions constituted anticipatory repudi-
ation and material breach of the Agreement. It also argues that
the guarantee should not be enforced against Justice.
II. DRUMMOND’S ISSUES ON APPEAL
A. Ambiguity of the Agreement
Drummond argues that the district court erroneously re-
lied on extrinsic evidence of the parties’ intent to interpret the
Agreement because evidence of industry usage establishes that
the Agreement is unambiguous. According to Drummond, the
Agreement is unambiguous based on evidence of industry usage
that demonstrates there is only one quarterly benchmark for the
price of metallurgical coal at any given time. To everyone in the
industry, the argument goes, the reference to the “Peak Downs
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metallurgical benchmark price” refers unequivocally to the one
and only benchmark price.
The interpretation of a contract, including whether it is
ambiguous, is a question of law that we review de novo. Reyn-
olds v. Roberts, 202 F.3d 1303, 1313 (11th Cir. 2000). “Questions
of fact arise only when an ambiguous contract term forces the
court to turn to extrinsic evidence of the parties’ intent, such as
precontract negotiations, to interpret the disputed term.” Laws.
Title Ins. Corp. v. JDC (America) Corp., 52 F.3d 1575, 1580 (11th
Cir. 1995). If a contract is ambiguous “and the trial court must
look to extrinsic evidence to determine the parties’ intent, we re-
view its findings of fact . . . as to the parties’ intent for clear error.”
Reynolds, 202 F.3d at 1313.
The parties agree that New York law applies to this dispute.
Under New York law, “[i]n determining the obligations of parties
to a contract, courts will first look to the express contract lan-
guage used to give effect to the intention of the parties, and
where the language of a contract is clear and unambiguous, the
court will construe and discern that intent from the document it-
self as a matter of law.” Williams v. Vill. of Endicott, 936 N.Y.S.2d
759, 761 (N.Y. App. Div. 2012). “Evidence outside the four corners
of the document as to what was really intended but unstated or
misstated is generally inadmissible to add to or vary the writing.”
W.W.W. Assocs., Inc. v. Giancontieri, 566 N.E.2d 639, 642 (N.Y.
1990). Extrinsic evidence may be considered to determine the
parties’ intent if the contract is ambiguous. Fattorusso v. RJR
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Mechanical, Inc., 16 N.Y.S.3d 844, 846 (N.Y. App. Div. 2015). But
extrinsic evidence may not be used to create ambiguity in a con-
tract that is “complete and clear and unambiguous upon its face.”
W.W.W. Assocs., 566 N.E.2d at 642.
In the context of a specialized trade or business contract,
“[c]ontract terms are considered ambiguous if they are capable of
more than one meaning when viewed objectively by a reasonably
intelligent person who has examined the context of the entire in-
tegrated agreement and who is cognizant of the customs, practic-
es, usages and terminology as generally understood in the partic-
ular trade or business.” Lightfoot v. Union Carbide Corp., 110
F.3d 898, 906 (2d. Cir. 1997) (internal quotation marks omitted)
(applying New York law). Conversely, “contract language is not
ambiguous if it has a definite and precise meaning, unattended by
danger of misconception in the purport of the contract itself, and
concerning which there is no reasonable basis for a difference of
opinion.” Hugo Boss Fashions, Inc. v. Fed. Ins. Co., 252 F.3d 608,
617 (2d Cir. 2001) (alterations adopted) (applying New York law).
However, it is possible that “even where a contract does not de-
fine a particular—and potentially ambiguous—term, a body of
state law or an established custom fills in the gaps left by the
drafters.” Hugo Boss, 252 F.3d at 617. “Custom” may also refer
to industry usage of a term. In fact, “[w]hen interpreting a state
law contract . . . an established definition provided by . . .industry
usage will serve as a default rule, and that definition will control
unless the parties explicitly indicate, on the face of their agree-
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10 Opinion of the Court 20-14560
ment, that the term is to have some other meaning.” Id. at 617–
18. Accordingly, by looking to evidence of industry usage, “a pos-
sible ambiguity may ultimately be proven to be illusory.” Id. at
618.
As noted above, the threshold determination of whether a
contract is ambiguous is a question of law that we review de no-
vo. Reynolds, 202 F.3d at 1313. We conclude that the district
court made no legal error when it determined the Agreement to
be ambiguous. Contrary to Drummond’s argument, the district
court did consider evidence of industry usage of the term in rul-
ing on summary judgment. In its order, the court specifically
noted that although “coal industry publications referred to the
agreed upon quarterly price using various terms such as the ‘Peak
Downs benchmark,’ the ‘Australian coking coal benchmark,’ or
simply ‘the benchmark,’ there is some evidence to show that it
was understood in the coal industry that the various terms denot-
ed the same thing.” Ordinarily, courts are bound to the four cor-
ners of the contract in interpreting it, but there is an exception for
evidence of industry usage or custom, and this evidence may be
considered in determining whether a contract is ambiguous. See
Hugo Boss, 252 F.3d at 617–18. Here, the district court properly
considered extrinsic evidence of industry usage before deciding
on ambiguity. However, the district found that the Agreement,
when read as a whole to determine its purpose and intent, was
ambiguous because both parties had offered reasonable interpre-
tations of the term. As a contract is ambiguous if “capable of
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more than one meaning when viewed objectively by a reasonably
intelligent person,” we conclude that the district court made the
proper legal determination that the Agreement was ambiguous.
Lightfoot, 110 F.3d at 906.
Once the district court determined that the Agreement was
ambiguous, it could properly hear extrinsic evidence as to the par-
ties’ intent at trial. Fattorusso, 16 N.Y.S.3d at 846. The district
court heard trial testimony from Dennis Steul, Drummond’s pri-
mary negotiator on the Agreement, and Steve Doyle, an industry
expert called by Drummond. Doyle’s testimony demonstrated
that there has always been only one benchmark in the metallurgi-
cal coal industry and that there were a variety of terms used to
describe this benchmark. As factfinder, the district court simply
found the testimony of Steul to be more credible and persuasive.
Steul’s testimony corroborated the finding that the term in the
price escalation clause was intended by the parties to be, specifi-
cally, the quarterly price set by BHP for the coal from its Peak
Downs mine that was sold to Japanese steelmakers. Steul testified
that he always considered Peak Downs to be a reference to the
mine owned by BHP. The district court was entitled to credit that
testimony.
Even more convincing was Steul’s testimony that in a con-
tract with another customer, Drummond priced the contract
based on the price of coal from another specific mine besides the
Peak Downs mine. Furthermore, that contract contained lan-
guage stating that, if the price for that mine was unavailable, the
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parties would mutually agree to an alternative quarterly price ba-
sis. In the Agreement here, there was no language that gave the
parties the right to use a different quarterly price for coal. The
Agreement instead tied increases in price to the Peak Downs
price, which Steul conceded was a reference to the mine owned
by BHP. When BHP stopped setting a quarterly benchmark price,
the district court concluded that the price escalation clause in the
Agreement then became unenforceable.
When the district court considers extrinsic evidence of the
parties’ intent in interpreting an ambiguous contract, this presents
a question of fact that we review for clear error. Reynolds, 202
F.3d at 1313. Here, the district court did not clearly err in credit-
ing Southern Coal’s position in interpreting the contract because
the parties’ testimony at trial and the facts of this case supported
this interpretation. When the parties entered the Agreement,
BHP was routinely setting a quarterly benchmark price—thus, the
price escalation clause was tied to the Peak Downs benchmark.
However, during the course of the Agreement, BHP stopped this
practice. We therefore ask, if BHP is no longer setting a quarterly
benchmark for its Peak Downs mine, then how can the price esca-
lation clause remain enforceable? Drummond argues that this is
made possible by changing the term “Peak Downs metallurgical
benchmark price” to “the quarterly benchmark price as agreed by
mining companies and Asian steel producers and as published in
industry newsletters.” However, if that is what the parties in-
tended, why did the parties, who are sophisticated and familiar
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with the industry, not write the Agreement to so read? Regard-
less, the correct approach here was clear. When BHP stopped set-
ting the quarterly benchmark price, the Agreement became unen-
forceable. See In re Licata, 908 N.Y.S.2d 441, 442 (N.Y. App. Div.
2010) (“[W]here a contract’s material terms are not reasonably
definite, the contract is unenforceable.”). Accordingly, we con-
clude that the district court made no legal error in finding the
Agreement ambiguous and further, its decision to find the price
escalation clause unenforceable was not clearly erroneous.
B. Equitable Reformation of the Agreement
Next, Drummond argues that even if the contract is am-
biguous, the Agreement should be reformed to reflect the parties’
intentions. We disagree.
Under the equitable reformation doctrine, “courts of equity
will reform a written contract where, owing to mutual mistake,
the language used therein did not fully or accurately express the
agreement and intention of the parties.” Philippine Sugar Ests.
Dev. Co. v. Gov’t of Philippine Islands, 247 U.S. 385, 389 (1918)
(emphasis added).
Drummond argues that the mutual mistake here was that
the parties thought that BHP always set the quarterly benchmark
price, when in fact, prior to entering the Agreement, companies
other than BHP had set the quarterly benchmark price. Howev-
er, this does not appear to be an issue of a mutual mistake, but
rather a lack of due diligence by these sophisticated parties before
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entering the Agreement. See Thompson v. McQueeney, 868
N.Y.S.2d 443, 447 (N.Y. App. Div. 2008) (“[W]ith a minimum de-
gree of due diligence, defendants’ mistake . . . would have been
readily apparent.”). Furthermore, the district court determined
that the intent of the parties was that the price escalation clause
was a specific reference to the Peak Downs mine. Therefore, we
cannot say the Agreement does not “fully or accurately express
the agreement and intention of the parties.” Phillipine Sugar Ests.
Dev. Co., 247 U.S. at 389. At best, this was a unilateral mistake
on the part of Drummond. The only apparent mutual mistake
here was a poorly drafted contract. Therefore, Drummond’s
claim for equitable reformation fails.
C. Attorneys’ Fees
Lastly, Drummond argues that the district court erred in
denying its request for attorneys’ fees. We agree.
We review the district court’s denial of attorneys’ fees for
an abuse of discretion. In re Trinity Indus., Inc., 876 F.2d 1485,
1496 (11th Cir. 1989). Under New York law, a prevailing party in
a breach of contract case may not collect attorneys’ fees and costs
from the non-prevailing party unless such an award is authorized
by the contract, statute, or court rule. TAG 380, LLC v. ComMet
380, Inc., 890 N.E.2d 195, 201 (N.Y. 2008). In determining the
prevailing party for purposes of awarding attorneys’ fees, the
court must consider “the true scope of the dispute litigated, fol-
lowed by a comparison of what was achieved within that scope.”
Duane Reade v. 405 Lexington, L.L.C. 798 N.Y.S.2d 393, 394
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(N.Y. App. Div. 2005). New York courts have also said that a pre-
vailing party “must simply prevail on the central claims advanced,
and receive substantial relief in consequence thereof.” Sykes v.
RFD Third Ave. I Assocs., LLC, 833 N.Y.S.2d 76, 77–78 (N.Y. App.
Div. 2007).
The district court determined that since neither party was
the “prevailing party” an award of attorneys’ fees was inappropri-
ate. While Drummond succeeded on its claim regarding the min-
imum Throughput Fees under the Agreement, Southern Coal
succeeded on its claim regarding the escalated fees. Although
Drummond’s victory was not total because it did not obtain
judgment for the escalated fees, its “central claim” was that
Southern Coal breached the Agreement by failure to pay the
monthly Throughput Fee. The district court entered judgment in
favor of Drummond for $6.86 million based on Southern Coal’s
breach in this regard. This qualifies as “prevail[ing] on the central
claims advanced.” See Sykes, 833 N.Y.S.2d at 77–78. A litigant’s
success does not have to be total to be considered the prevailing
party. See Duane Reade, 798 N.Y.S.2d at 394 (“That the land-
lord’s success at trial was only partial does not negate the fact that
it prevailed.”). Therefore, we conclude that the district court
abused its discretion in not awarding attorneys’ fees to Drum-
mond because Drummond was the prevailing party. 1
1In its brief, Southern Coal argues that it is the prevailing party for purposes
of attorneys’ fees. Because we conclude that Drummond is the prevailing
party, Southern Coal’s argument in this regard fails.
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New York law states that “when a contract provides that in
the event of litigation the losing party will pay the attorneys’ fees
of the prevailing party, the court will order the losing party to pay
whatever amounts have been expended by the prevailing party,
so long as those amounts are not unreasonable.” F.H. Krear &
Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1263 (2d Cir.
1987) (applying New York law). Accordingly, we remand to the
district court for a determination of whether the attorneys’ fees
Drummond requests are reasonable.
III. SOUTHERN COAL’S ISSUES ON CROSS-APPEAL
A. Anticipatory Repudiation
On its appeal, Southern Coal argues that the district court
erred in determining that Drummond’s actions did not constitute
an anticipatory repudiation. “An anticipatory breach of contract
by a promisor is a repudiation of a contractual duty before the
time fixed in the contract for . . . performance has arrived.”
Princes Point LLC v. Muss Dev. LLC, 87 N.E.3d 121, 124 (N.Y.
2017) (alteration adopted). An anticipatory breach of contract—
also known as an anticipatory repudiation—can be shown
through statements by the obligor to the obligee or an affirmative
act by the obligor. Id. “For an anticipatory repudiation to be
deemed to have occurred, the expression of intent not to perform
by the repudiator must be ‘positive and unequivocal.’” Id. New
York courts have held that “a wrongful repudiation of the con-
tract by one party before the time for performance entitles the
nonrepudiating party to immediately claim damages for a total
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breach.” Id. at 125. Whether a party commits anticipatory repu-
diation of a contract is a question of fact. O’ Connor v. Sleasman,
788 N.Y.S.2d 518, 520 (N.Y. App. Div. 2005).
When the price of coal increased to $285 per metric ton in
the first quarter of 2017, Southern Coal refused to pay its obliga-
tions under the Agreement because BHP was no longer setting a
quarterly benchmark price and the price escalation was therefore
invalid. Southern Coal sent a letter to this effect to Drummond in
March 2017 and demanded adequate assurances that Drummond
would not invoice more than the minimum $1 million per month.
Drummond responded that the price escalation clause remained
valid and it would continue to invoice Southern Coal based on the
quarterly benchmark price set by other companies. According to
Southern Coal, this response constituted anticipatory repudiation.
Notably, however, Drummond’s response stated, “Drummond’s
performance obligation is to provide Southern [Coal] with the
throughput services, and there is no question regarding Drum-
mond’s ability to provide these services.”
In its brief, Southern Coal cites to IBM Credit Fin. Corp. v.
Mazda Motor Mfg. (USA) Corp., where the New York court of
appeals held that a party’s “insistence on an untenable interpreta-
tion of a key contractual provision, and refusal to perform other-
wise, constituted an anticipatory breach of the contract.” 706
N.E.2d 1186, 1187 (N.Y. 1998). Thus, anticipatory repudiation re-
quires a refusal to perform under the contract. Here, Drum-
mond’s obligation under the Agreement was to provide through-
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put services for its port to Southern Coal. At no point did
Drummond indicate that it would not perform that obligation.
Therefore, there can be no anticipatory repudiation. Accordingly,
Southern Coal’s argument that the district court should have ex-
cused Southern Coal from owing anything under the Agreement
based on anticipatory repudiation is without merit.
B. Material Breach
Similar to its anticipatory repudiation argument, Southern
Coal argues that the district court should have found that Drum-
mond materially breached the Agreement and therefore Southern
Coal was discharged of its contractual obligations. A breach of
contract is material if it goes “to the root of the agreement be-
tween the parties.” Frank Felix Assocs., Ltd. v. Austin Drugs, Inc.,
111 F.3d 284, 289 (2d Cir. 1997) (applying New York law). Fur-
ther, “[a] party’s obligation to perform under a contract is only
excused where the other party’s breach of the contract is so sub-
stantial that it defeats the object of the parties in making the con-
tract” and the court must consider “the special purpose of the
contract” in making this determination. Id.The district court concluded that Southern Coal’s material
breach argument was “without merit.” Southern Coal contends
that the escalated invoices constitute material breach. The district
court specifically noted that “[t]he fact that Southern Coal may
not agree with the amount that Drummond invoiced does not
mean that Drummond breached its duty to invoice as required
under . . . the Agreement.” We agree with the district court’s de-
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termination that Drummond did not materially breach the
Agreement. The “root” of the Agreement was that Drummond
would provide throughput services to Southern Coal. At no point
did Drummond indicate that it would not perform this obligation.
Our conclusion is consistent with the Second Restatement
of Contracts’ approach to determining whether a breach is mate-
rial. The Restatement notes the following circumstances, among
others, are significant in making this determination: (1) “the ex-
tent to which the party failing to perform or to offer to perform
will suffer forfeiture;” (2) “the likelihood that the party failing to
perform or to offer to perform will cure his failure, taking account
of all the circumstances including any reasonable assurances;” and
(3) “the extent to which the behavior of the party failing to per-
form or to offer to perform comports with the standards of good
faith and fair dealing.” Restatement (Second) of Contracts § 241
(1981) (emphasis added). Thus, central to the material breach
analysis is the party’s failure to perform. Because Drummond
continued to perform its obligations under the Agreement and
because Drummond’s breach in this case went to pricing, and not
to the Agreement’s “special purpose” of providing throughput
services, we cannot say that Drummond’s breach in this regard
was material. Frank Felix Assocs., Ltd., 111 F.3d at 289. Accord-
ingly, we conclude that Drummond did not materially breach the
Agreement and Southern Coal was not thereby excused from per-
forming its obligations under the Agreement.
C. Justice’s Liability under the Guarantee
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Lastly, Southern Coal argues that if the award against it is va-
cated, then the award against Justice must also be vacated. How-
ever, since we are affirming the district court’s judgment against
Southern Coal, we need not address this argument. Regarding
the award of attorney fees, the guarantee agreement, signed by
Justice, provides that he “agrees to pay all expenses, including,
without limitation, all reasonable fees and expenses of outside
counsel which may be paid or incurred by [Drummond] in en-
forcing or asserting any of their respective rights under this Guar-
antee.” Therefore, the guarantee provides that Justice may also
be liable for attorneys’ fees incurred by Drummond. We con-
clude that the judgment against Justice stands and he is also liable
for the additional award of attorneys’ fees if Southern Coal is un-
able to pay Drummond for this obligation.
IV. CONCLUSION
In sum, we affirm the district court’s judgment against
Southern Coal and Justice in the amount of $6,860,000. We con-
clude that the district court correctly found as a matter of law that
the price escalation clause in the Agreement was ambiguous. We
further conclude that district court did not clearly err in interpret-
ing this provision at trial and finding it unenforceable. We also
reject Drummond’s claim of equitable reformation and Southern
Coal’s claims of anticipatory repudiation and material breach.
Lastly, we conclude that the district court erred in not awarding a
reasonable sum of attorneys’ fees to Drummond. Therefore, we
USCA11 Case: 20-14560 Date Filed: 02/04/2022 Page: 21 of 24
20-14560 Opinion of the Court 21
reverse on the issue of attorneys’ fees and remand to the district
court to determine a reasonable sum.
AFFIRMED in part, and REVERSED and REMANDED in
part.
USCA11 Case: 20-14560 Date Filed: 02/04/2022 Page: 22 of 24
20-14560 ED CARNES, J., Concurring 1
ED CARNES, Circuit Judge, concurring in part and concurring in
the judgment:
I concur in the panel’s judgment and most of its opinion,
including the conclusion that Drummond is entitled to a reasona-
ble amount of attorney’s fees. But I disagree about why Drum-
mond is entitled to them.
Unlike the majority opinion, I don’t think a prevailing party
analysis is the right attorney’s fees framework. The parties’
agreement calls for a different framework, and under New York
law that choice should be honored. The agreement provides that
the “Defaulting Party shall indemnify the Non-Defaulting Party
for any expenses and costs, including attorney fees, arising out of
or relating to any default under this Agreement or any effort to
collect payment.” And it defines a “Defaulting Party” as a party
who, among other things, “fails to make a payment as required
under this Agreement.”
Those contract terms matter because when considering
whether to award attorney’s fees in a contract dispute, New York
courts generally follow the terms of the contract. Admittedly, the
caselaw is not crystal clear, but the courts of that state don’t ap-
pear to apply a prevailing party analysis where the contract pro-
vides otherwise. Instead, they apply a “defaulting party” analysis
when the terms of the contract call for it and a “prevailing party”
analysis when the terms of the contract call for that.
USCA11 Case: 20-14560 Date Filed: 02/04/2022 Page: 23 of 24
2 ED CARNES, J., Concurring 20-14560
New York decisions have addressed contracts with “de-
faulting party” language that is similar to the language used in the
agreement in this case. Those decisions have awarded attorney’s
fees based on whether a party “defaulted” instead of whether a
party “prevailed.” See Violet Realty, Inc. v. Amigone, Sanchez &
Mattrey, LLP, 183 A.D.3d 1278, 1280–81 (N.Y. App. Div. 2020)
(“The lease provided that, in the case of a default,
the defaulting party is liable for the payment of, among other
things, the other party's reasonable attorneys’ fees. Defendant
does not dispute that it defaulted under the lease, and we con-
clude that the court should have granted that part of plaintiff's
motion seeking an award of attorneys’ fees.”); LG Funding, LLC
v. Johnson & Son Locksmith, Inc., 170 A.D.3d 1153, 1154 (N.Y.
App. Div. 2019); Sempra Energy Trading Corp. v. P.G. & E. Tex.
VGM, L.P., 284 A.D.2d 253, 254 (N.Y. App. Div. 2001) (“An award
of attorneys’ fees was proper since the parties expressly provided
in their contract that, in the event of a default, the defaulting par-
ty would be responsible for costs and expenses, including attor-
neys' fees, incurred by the performing party as a result of the de-
fault.”); Montgomery-Otsego-Schoharie Solid Waste Mgmt. Auth.
v. Cnty. of Otsego, 249 A.D.2d 702, 703–04 (N.Y. App. Div. 1998)
(“Defendant's failure to pay the GAT shortfall amount due under
the contract constituted a default; consequently, under the provi-
sion for counsel fees in the event of a default, . . . MOSA's cause of
action for counsel fees should not have been dismissed.”).
USCA11 Case: 20-14560 Date Filed: 02/04/2022 Page: 24 of 24
20-14560 ED CARNES, J., Concurring 3
By contrast, where the contract provided that attorney’s
fees should be awarded to a “prevailing party,” or didn’t specify
what analysis should be used to award attorney’s fees, New York
courts have applied a prevailing party analysis. See, e.g., TAG
380, LLC v. ComMet 380, Inc., 890 N.E.2d 195, 201 (N.Y. 2008);
Sykes v. RFD Third Ave. I Assocs., LLC, 39 A.D.3d 279, 279 (N.Y.
App. Div. 2007); Duane Reade v. 405 Lexington, L.L.C., 19
A.D.3d 179, 180 (N.Y. App. 2005).
The difference between a defaulting party analysis and a
prevailing party analysis might matter in some circumstances, al-
beit not in these. As mentioned, the agreement provides that the
“Non-Defaulting Party” gets attorney’s fees from the “Defaulting
Party,” which includes a party that “fails to make a payment as
required under th[e] Agreement.” Southern Coal failed to make a
payment as required under the agreement; it is the “Defaulting
Party.” For that reason, I reach the same conclusion under the
defaulting party contractual provision as the majority reaches un-
der the prevailing party analysis.
There’s not much more that needs to be said about the
proper route to follow to get to the same result. Because the re-
sult is the same either way, and because our decision does not
bind any New York court anyway, I’ll leave it at that.