Just Wood Industries v. Centex Construction ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JUST WOOD INDUSTRIES,
INCORPORATED,
Plaintiff-Appellee,
v.
CENTEX CONSTRUCTION COMPANY,
INCORPORATED, No. 98-1855
Defendant-Appellant,
v.
FIDELITY & GUARANTY INSURANCE
COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-97-1131-A)
Argued: May 5, 1999
Decided: August 12, 1999
Before MURNAGHAN, LUTTIG, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: James E. Edwards, Jr., OBER, KALER, GRIMES &
SHRIVER, P.C., Baltimore, Maryland, for Appellant. Richard G.
Mann, Jr., WATT, TIEDER, HOFFAR & FITZGERALD, L.L.P.,
McLean, Virginia, for Appellees. ON BRIEF: David L. Cole, Jr.,
OBER, KALER, GRIMES & SHRIVER, P.C., Baltimore, Maryland,
for Appellant. Fred A. Mendicino, WATT, TIEDER, HOFFAR &
FITZGERALD, L.L.P., McLean, Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In July 1997, Just Wood Industries, Inc. (Just Wood) filed a diver-
sity action in United States District Court against Centex Construction
Company, Inc. (Centex) for alleged breaches of contract and tortious
interference with contract. Centex in turn filed counterclaims against
Just Wood and its surety, Fidelity & Guaranty Insurance Co. (Fidelity),1
alleging breach of contract. The suit proceeded to trial and a jury
found in favor of Just Wood on its breach of contract claims, against
Just Wood on its claim of tortious interference with contract, and
against Centex on its counterclaims. The jury awarded Just Wood
$785,000 in damages. The district court denied Centex's post-trial
motions and entered final judgment in accordance with the jury ver-
dict. Centex now appeals to this Court. For the reasons that follow,
we affirm.
I.
This dispute arose from Centex's engagement of Just Wood as a
specialty subcontractor in the construction of the United States Fish
& Wildlife Service's National Education and Training Center (the
_________________________________________________________________
1 Because of the surety relationship and the aligned interests of Fidelity
and Just Wood, we refer to Appellees collectively as"Just Wood" within
the opinion.
2
Center) in West Virginia. Centex and Just Wood entered into two
agreements dated October 31, 1994, which governed their commercial
relationship -- the "Purchase Agreement" and"Subcontract." The
Purchase Agreement provided for the purchase of specialty wood-
work and the Subcontract covered the woodwork's installation. In
addition to setting out the terms of performance, the agreements also
contained a "condition precedent" requiring Just Wood to provide
bonds that variously guaranteed supply, payment, and performance
under the Purchase Agreement and Subcontract. For its part of the
project, Just Wood was to be paid approximately $3 million.
Just Wood began performing preliminary work on the project in
October 1994, but did not furnish the bonds until December 1995.
The entire project, however, was substantially behind schedule, and
Just Wood was unable to begin its on-site work until August 1996.
Aside from the timing issues, the parties had ongoing disputes about
both the materials and the installation. Just Wood complained that the
environmental conditions inside the buildings were unacceptable and
that Centex and tradesmen under its control were improperly interfer-
ing with the installation efforts. Centex maintained that Just Wood did
not meet the exacting quality standards required under the Subcon-
tract and Purchase Agreement, and eventually terminated Just Wood
"for cause." Centex immediately replaced Just Wood with another
subcontractor, Greenbrier Architectural Woodwork (Greenbrier), who
finished the work originally assigned to Just Wood.
Just Wood then filed suit alleging that it was wrongfully terminated
because Centex failed to demonstrate sufficient cause. Just Wood also
alleged that Centex had delayed the timing of performance, had failed
to make timely payments, and had tortiously interfered with contrac-
tual relations. Centex counterclaimed, alleging that Just Wood had
failed to meet its contractual obligations and that Fidelity, as surety,
was obligated to indemnify Centex against damage caused by Just
Wood's breach.
A trial was held in the United States District Court for the Eastern
District of Virginia in March 1998. After hearing evidence, a jury
found in favor of Just Wood and awarded $785,000 in damages. Final
judgment was entered in accordance with the jury verdict on March
18, 1998. Centex timely noted an appeal to this Court.
3
On appeal, Centex argues that the district court failed to properly
interpret the contracts, that evidence was improperly admitted at trial,
that Just Wood's counsel made improper statements during closing
argument, and that the district court erred when it denied Centex's
motions for judgment as a matter of law. We address these issues in
turn.
II.
A.
Centex first argues that the district court erred in instructing the
jury because it failed to interpret the contracts for the jury and that the
district court improperly instructed the jury about contract ambiguity
and the law of substantial performance. Just Wood responds that the
jury instructions were proper, and that in any case, Centex failed to
object to them at trial.
As an initial matter, we address Just Wood's contention that Cen-
tex failed to properly object at trial. Federal Rule of Civil Procedure
51 states that "[n]o party may assign as error the giving or the failure
to give an instruction unless that party objects thereto before the jury
retires to consider its verdict, stating distinctly the matter objected to
and the grounds of the objection." Fed. R. Civ. P. 51. A review of the
record demonstrates that Centex did submit written objections chal-
lenging the jury instructions related to contract ambiguity. Centex
also generally objected to Just Wood's jury instruction number 46,
which discussed substantial performance, claiming that it incorrectly
stated the law applicable to the case and was unsupported by the evi-
dence. These objections were sufficient to preserve error for our
review.
Contract interpretation is a matter of law and is within the province
of the courts, as is the authority to allow a jury to interpret a contract
if a court determines that it is ambiguous. See Wilson v. Holyfield,
313 S.E.2d 396, 398 (Va. 1984) ("[T]he question whether a contract
is ambiguous is not one of fact but one of law."). We, therefore,
review the district court's interpretation of the contracts de novo. See
Nehi Bottling Co. v. All-American Bottling Corp., 8 F.3d 157, 162
(4th Cir. 1993). Although Centex generally complains that the district
4
court should have better defined the meaning of the contract, Centex
only specifically complains that the district court erred in delivering
an instruction on ambiguity and on substantial performance.
By giving the instruction on contract ambiguity, the district court
implicitly determined that the contracts were in fact ambiguous and
that it was within the jury's province to interpret such contracts. See
Glazer v. Glazer, 374 F.2d 390, 412 (5th Cir. 1967) ("The court did
not specifically state whether it found the contract ambiguous as a
preliminary matter. We find the court's failure to state an express
view, however, to be implied recognition of the agreement's ambigu-
ity."). On appeal, Centex makes no substantive argument as to the
contracts' clarity specifically or generally, nor does Centex offer any
evidence of how such an interpretation was injurious to its interests.2
The district court instructed the jury on how to interpret the terms of
the contracts in accordance with Virginia model jury instructions.
Absent any substantive argument pointing to specific contract provi-
sions at issue during the trial that were improperly deemed to be
ambiguous by the district court, we refuse to alter the judgment of the
district court.
Centex also claims that the jury instructions related to the doctrine
of substantial performance were given in error. The doctrine of sub-
stantial performance is a cornerstone of contract law that mandates
payment if the contractual obligations are substantially performed
with only minor deficiencies. See, e.g., West Va. Human Rights
Comm'n v. Smoot Coal Co., 412 S.E.2d 749, 754 (W. Va. 1991);
Neely v. White, 14 S.E.2d 337, 340 (Va. 1941). This doctrine miti-
gates the harsh consequences that would accrue if small errors in per-
formance were treated as material breaches, e.g., termination of the
defaulting party and full damages resulting from failing to complete
performance. See 2 E. Allan Farnsworth, Farnsworth on Contracts
§ 8.15, at 490 (2d ed. 1998). As courts have long recognized, allow-
ing full remedies for only minor deficiencies would amount to unrea-
sonable economic waste. See, e.g., Kirk Reid Co. v. Fine, 139 S.E.2d
829, 836 (Va. 1965). In sum, the doctrine of substantial performance
_________________________________________________________________
2 We note that Centex's objections at trial also failed to identify any
contract provision at issue that Centex believed to be unambiguous as a
matter of law, requiring an interpretation by the district court.
5
constrains the amount of damages when the deviations from contract
terms are minor.
Centex asserts that the terms of the Purchase Agreement and the
Subcontract defeated the doctrine of substantial performance and
thereby required undeviating compliance with the contract terms.
First, Centex argues that as a federal project, the government was
entitled to demand strict compliance. Whether that is true is immaterial3
because the federal government is not a party to this case and Centex
is only entitled to hold Just Wood to the requirements of the Purchase
Agreement and Subcontract to which the two parties mutually
assented. Without more, we do not believe that the federal govern-
ment's involvement in a project obviates the doctrine of substantial
performance.
Second, Centex argues that the terms of performance require strict
compliance and thus obviate the normal rule of substantial perfor-
mance. Although we agree with the assertion that contracting parties
might bind themselves to an agreement that would allow full termina-
tion and recovery rights for even the most minor of breaches, we do
not believe that is the case here.
Centex's second argument is based upon an interpretation of a Vir-
ginia case, which allegedly held that if a contract requires strict com-
pliance, then its terms do not allow for any deviation, however minor.
See Winn v. Aleda Const. Co., 315 S.E.2d 193, 195 (Va. 1984)
("Given their usual, ordinary, and popular meaning, `strictly' means
`particularly severe in requirement: permitting no evasion . . . main-
tained absolutely without deviation . . . .'" (quoting Webster's Third
New International Dictionary 2261 (1981)) (alteration in original)).
The context of this holding leads us to believe, however, that Virginia
_________________________________________________________________
3 We have reviewed the two Federal Circuit cases primarily relied upon
by Centex for the assertion that the doctrine of substantial performance
is inapplicable to federal government contracts-- Madigan v. Hobin
Lumber Co., 986 F.2d 1401, 1403-04 (Fed. Cir. 1993), and Peters v.
United States, 694 F.2d 687, 695 (Fed. Cir. 1982). These cases do not
expressly reject the doctrine of substantial performance, but simply assert
the basic principle of contract law that a party is entitled to receive the
full benefits expressly conferred by the terms of the contract.
6
has not determined that the use of the term "strict" eliminates the doc-
trine of substantial performance nor does it give a contracting party
the right to terminate the other party for the most minor deficiency in
performance. In Winn, the court implemented contract terms, which
included what amounted to a liquidated damages clause mandating
that nonperformance of a particular duty would result in the forfeiture
of a progress payment. Thus, Winn was a simple case of measuring
damages in accordance with the plainly agreed-upon terms. The Vir-
ginia court did not expressly eschew the doctrine of substantial per-
formance.
In the case before us, there is no such liquidated damages clause.
Instead, there is only a general statement regarding the expected level
of performance. The Purchase Agreement states that"materials shall
be in strict accordance with the agreement between the [government]
and [Centex]." (J.A. at 1090.) The Subcontract uses less exacting lan-
guage: "The work shall be performed in a first-class manner as
required by and in accordance with the Contract Documents." (J.A.
at 1106.) This language conveys an expected level of performance,
which is "strict" in the case of the Purchase Agreement, but does not
indicate that anything less would be a material breach giving Centex
the absolute right to terminate the entire contract and exact full dam-
ages. If it did, a five-dollar error on a three-million-dollar project
would presumably give Centex the right to terminate the contract. It
would be absurd to hold that the mere use of the term "strict" to clar-
ify the requirements of performance would subject Just Wood to the
consequences of a material breach for the most minor errors. We do
not accept the position that inserting the requirement of strict perfor-
mance defeats the doctrine of substantial performance.
Instead, the language delineates only the expected level of perfor-
mance or the departure point from which damages may be measured.
For example, absent the requirement of strict compliance, Just Wood
might supply a better grade of wood in a particular area, rather than
the grade that was contractually required. In most circumstances, this
substitution presumably would not result in any damage and would
likely be deemed substantial performance. By using the term "strict,"
Centex might be in a better position to demand specific performance
or have a better chance of proving a material breach depending on the
significance of the deviation. The district court's jury instruction on
7
substantial performance reflected this understanding by stating that
Centex was entitled to "full and complete performance"4 and that Just
Wood's performance would be satisfactory only if it was "so nearly
equivalent to what was bargained for that it would be unreasonable
to deny . . . the payment agreed upon." (J.A. at 903.) Undoubtedly,
the term "strict" has import, though not as much as Centex would like.
Accordingly, we believe the instruction on substantial performance
was proper.
We find no error in the district court's interpretation of the contract
or the related jury instructions.
B.
Centex next argues that the district court improperly admitted evi-
dence about Greenbrier's performance as a replacement subcontractor
for Just Wood and improperly admitted a "logbook" compiled from
notes taken by a Just Wood employee. We review the admission of
evidence under the narrow abuse of discretion standard and will not
reverse the district court's decision unless it is"manifestly errone-
ous." General Elec. Co. v. Joiner, 118 S. Ct. 512, 517 (1997).
1.
During the course of trial, Just Wood introduced a significant
amount of testimonial and illustrative evidence concerning the quality
of Greenbrier's work as a replacement for Just Wood. The evidence
tended to show that, at least in some instances, Greenbrier's work was
inferior to that performed by Just Wood.
Centex argues that the district court abused its discretion in admit-
ting evidence of Greenbrier's subsequent performance as the replace-
ment contractor because it had no bearing on whether Just Wood
fulfilled its contractual duties. Specifically, Centex contends that
Greenbrier's performance was irrelevant and thus inadmissible under
the Federal Rules of Evidence. See Fed. R. Evid. 402 ("Evidence
_________________________________________________________________
4 Notably, after hearing all of the evidence, the jury awarded no dam-
ages to Centex.
8
which is not relevant is not admissible."). Centex's position relies pri-
marily on a case from the Seventh Circuit, Original Great Am. Choc-
olate Chip Cookie Co. v. River Valley Cookies, Ltd. , 970 F.2d 273(7th Cir. 1992). The Seventh Circuit held that treating similarly situ-
ated parties differently has no bearing on determining contractual
default. See id. at 279 ("The fact that the Cookie Company may, as
the Sigels argue, have treated other franchisees more leniently is no
more a defense to a breach of contract than laxity in enforcing the
speed limit is a defense to a speeding ticket."). Although we believe
there is logic in the view expressed by the Seventh Circuit, we also
believe that if two parties are laboring under identical performance
standards, the acceptance of work from one of the parties may logi-
cally bear upon Centex's own interpretation of the contractual obliga-
tions.
The parties' understanding of the acceptable level of performance
under the contract is relevant when, as here, a court has determined
provisions of the contract to be ambiguous. Cf. Aiken County v. BSP
Div., 866 F.2d 661, 670 n.11 (4th Cir. 1989) ("It is not necessary to
resort to the evidence concerning the parties' understanding of this
interpretation because we find the contract unambiguous."). Undoubt-
ably, certain of the performance criteria were objective and unambig-
uous. Yet, other important terms of the contract were less than clear,
such as the Subcontract's requirement that work be performed in a
"first-class manner." (J.A. at 1106.) The evidence of Centex's inter-
pretation was thus relevant to a central question before the district
court -- whether Just Wood's work fell below the ambiguous con-
tractual standards. The district court's decision to admit the evidence
of Greenbrier's performance was not an abuse of discretion.
2.
Centex also complains that the district court abused its discretion
by admitting a project logbook into evidence, which was prepared by
a Just Wood employee after this litigation was underway. The log-
book contained information about conditions at the project site and,
most importantly, humidity readings that bore directly on whether
Centex was maintaining a proper environment for the sensitive wood-
work. Centex argues that admitting the logbook violated the hearsay
rule and that the logbook did not meet the requirements of the busi-
9
ness records exception, Fed. R. Evid. 803(6), because it was prepared
long after the events recorded and because it was prepared in anticipa-
tion of litigation.
Federal Rule of Evidence 803 allows business records to be admit-
ted into evidence even though they would otherwise be considered
inadmissible hearsay:
A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmitted
by, a person with knowledge, if kept in the course of a regu-
larly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum,
report, record, or data compilation, all as shown by the testi-
mony of the custodian or other qualified witness, unless the
source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term "busi-
ness" as used in this paragraph includes business, institution,
association, profession, occupation, and calling of every
kind, whether or not conducted for profit.
Fed. R. Evid. 803(6). A Just Wood employee who worked on-site at
the Center testified that it was Just Wood's regular practice to main-
tain such a logbook, that the information was recorded contemporane-
ously with the conditions observed, and that he prepared the logbook.
Based upon these facts, the district court found that logbook was
admissible.
Our review of the district court's decision to admit the logbook
reveals no abuse of discretion. All of the critieria for admissibility
under Fed. R. Evid. 803(6) were met: the site conditions originally
were recorded at the time they were observed; the preparer had per-
sonal knowledge of the information; the information was maintained
in the regular course of business; and, finally, the fact that the log-
book itself was prepared at a later date did not render it unreliable.
A careful reading of the timeliness requirement contained in Fed. R.
Evid. 803(6) reveals that it relates to the reliability of the information
recorded. See Missouri Pacific R.R. Co. v. Austin, 292 F.2d 415, 422-
23 (5th Cir. 1961) (noting that the timing requirements should be
10
viewed on a case-by-case basis and according to the reliability of the
sources of the information). There is no question that the preparer
contemporaneously recorded his observations, and the only delay was
in the transcription into a central logbook. We do not believe the time
of transcription from previously recorded observations is a crucial
factor under Fed. R. Evid. 803(6). The district court weighed possible
unreliability stemming from the time of the transcription and did not
consider it to impeach its credibility. Furthermore, based upon our
review of the record, no other facts about the logbook give us concern
about its reliability. Accordingly, the district court's decision to admit
the logbook was not an abuse of discretion.
C.
Centex next complains that during oral argument, Just Wood's
counsel made various statements that impermissibly appealed to the
prejudice of the jurors. Whether a new trial is warranted is committed
to the trial judge's discretion and we, therefore, review only for an
abuse of discretion. See Rabon v. Great Southwest Fire Ins. Co., 818
F.2d 306, 310 (4th Cir. 1987). Specifically, Centex identifies: three
occasions on which Just Wood's counsel gave a personal opinion
about the evidence, making statements such as, "I don't think so,"
after questioning the logic of certain inferences drawn by Centex; a
mention of the issue of punitive damages when no instruction was to
be given on punitive damages; and finally, various comments portray-
ing the dispute as one between a large rich corporation and a small
struggling entrepreneur. Our review of these instances in light of the
applicable law demonstrates the soundness of the district court's deci-
sion.
In the interests of justice and efficiency, a new trial should not be
lightly granted. To begin with, a new trial should be granted only if
prejudicial statements are so egregious that they prevent the com-
plaining party from receiving a fair trial. See DeBenedetto v. Good-
year Tire & Rubber Co., 754 F.2d 512, 519 (4th Cir. 1985). If a party
fails to object to an error at trial, a new trial will not be granted unless
"exceptional circumstances exist such as when the error is so obvious
or so serious that the public reputation and integrity of the judicial
proceeding is impaired." Hafner v. Brown, 983 F.2d 570, 578 (4th
Cir. 1992) (internal quotation marks omitted). Finally, a curative
11
instruction may render prejudicial remarks harmless. See City of
Greenville v. W.R. Grace & Co., 827 F.2d 975, 983-84 (4th Cir.
1987).
The circumstances of the case at hand fall well outside of the situa-
tions that might qualify for the relief of a new trial. First, on the occa-
sions when Just Wood's counsel provided a personal opinion about
the evidence, Centex never objected, and, on the final occasion, the
district court sua sponte corrected Just Wood's counsel. Second, when
Just Wood raised the issue of punitive damages, the district court
issued a curative instruction immediately. Finally, as to Centex's
complaint that Just Wood's counsel improperly painted the suit as
"David versus Goliath," Centex failed to object at trial. Moreover, the
district court generally instructed the jury that"statements and argu-
ments" were not evidence and that all parties were to be treated
equally in a court, regardless of their positions as individuals or busi-
nesses and their respective stations in the community.
From this record, we conclude that Centex either failed to preserve
the issues because it did not object at trial, or the district court deliv-
ered curative instructions contemporaneous with the offending remark
or in summary instructions to the jury. Finally, taken in context, we
certainly do not believe that the comments prevented Centex from
receiving a fair trial. In sum, Centex has not presented us with suffi-
cient reason to second guess the district court's exercise of discretion
in refusing to grant a new trial for the allegedly prejudicial remarks.
D.
Centex's last argument is that the district court should have entered
judgment as a matter of law, notwithstanding the verdict, on its
behalf. Centex makes this argument as to three different issues. First,
Centex asserts that it presented sufficient evidence to find Just Wood
in breach of contract and that Just Wood failed to rebut that evidence.
Second, Centex states that judgment as a matter of law should have
been rendered against Just Wood on its breach of contract damage
claims for two reasons: Just Wood failed to present timely notice of
the claims as required by the Subcontract; and no agreement was
formed before the bonds were delivered under the contract -- thus,
12
no damages could accrue until that time. Third, Centex argues that
there was insufficient evidence to support the awarded damages.
Whether a judgment as a matter of law should have been granted
is a question of law requiring de novo review on appeal. See Gairola
v. Virginia Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985).
We are, however, bound to construe all evidence in the light most
favorable to the prevailing party, and the verdict must stand unless a
reasonable jury could only conclude otherwise. See id. at 1285.
1.
As to the first issue, Just Wood clearly presented sufficient evi-
dence to rebut Centex's breach of contract claim. Experts testified
that the original work performed by Just Wood appeared to comply
with the relevant standards and that Just Wood maintained the
required pace of work. Witnesses attributed the deficiencies to events
occurring after Just Wood's installation -- events beyond the control
of Just Wood but within the scope of Centex's responsibilities.
Experts opined that continuing humidity problems caused by Centex's
failure to control the environment adversely affected the installed
woodwork. Furthermore, witnesses testified that significant damage
to Just Wood's work was caused by other tradesmen working at the
Center, whom Centex failed to control properly.
Finally, Just Wood's experts also testified that any installation
problems could have been remedied via a "punch list," an itemized
list of minor deficiencies to be corrected by Just Wood. This testi-
mony went to the heart of whether any nonconformance constituted
a material breach. The Subcontract specifically contemplated a punch
list, and, therefore, errors that would naturally be a part of such a
large project. If the jury believed this testimony, it was certainly suffi-
cient to rebut charges that Just Wood committed many of the alleged
breaches, much less a material breach. Viewing the evidence in the
light most favorable to Just Wood, we must conclude that the district
court was correct in not granting judgment as a matter of law on this
point.
13
2.
The second issue Centex raises is whether it should have been
granted judgment as a matter of law denying Just Wood's breach of
contract claims because Just Wood failed to give Centex the contrac-
tually required notice of delay and disruption damages and because
the contract was not formed until January of 1996, when Just Wood
delivered the required bonds.5
Under the Subcontract, Just Wood was required to give Centex
notice "[w]ithin five (5) calendar days after the commencement of
any delay or disruption." (J.A. at 1108.) Furthermore, both the Sub-
contract and the Purchase Agreement required that certain bonds be
provided to Centex by Just Wood as a condition precedent to the for-
mation of the contract. In other words, absent the bonds, Centex was
not bound to perform under the contracts. See, e.g., Pradhan v.
Maisel, 338 A.2d 905, 909 (Md. Ct. Spec. App. 1975) (holding no
contractual duty arises where there is an unfulfilled condition prece-
dent to a contract). However, parties may freely waive conditions pre-
cedent by accepting performance. See Erlich v. Hendrick Constr. Co.,
225 S.E.2d 665, 669 n.1 (Va. 1976) ("Contractor performed under the
agreement, claimed its benefits, and cannot now be heard to disavow
its obligations.").
_________________________________________________________________
5 We note Centex's argument that the Purchase Agreement contained
no date certain to begin work, and, therefore, that Just Wood could not
recover for any delay damages suffered under that agreement. We simply
find that position mistaken. The Purchase Agreement stated that Just
Wood was obligated to "submit [all plans, drawings, etc.] for approval
by Owner with all possible dispatch so as not to delay the work." (J.A.
at 1090.) The Purchase Agreement also stated that"[s]hipments are to be
made in accordance with project requirements," subject to the penalty of
cancellation "if the material specified is not shipped at the time
required." (J.A. at 1090.) First, it is clear that work had to begin on the
plans and drawings in accordance with the anticipated project schedule.
Moreover, because Just Wood was also responsible for installation under
the Subcontract, it was well aware that to avoid any delays and the risk
of cancellation, it was obligated to have the fabrication complete in time
to satisfy the installation schedule. We simply find no merit in Centex's
argument that Just Wood was not obligated to begin work at any particu-
lar time.
14
We must reject the argument that delay and disruption damages
could not have accrued because no notice was presented to Centex as
required by contract. Whether Just Wood effectively provided such
notice is a question of fact and therefore within the province of the
jury. The record demonstrates that at least some evidence was intro-
duced showing that Just Wood informed Centex of various difficul-
ties, which led to additional work and expense. Viewing this evidence
in a light most favorable to Just Wood, the prevailing party, we
believe that a reasonable jury could have found that Just Wood ade-
quately informed Centex of the problems, thus satisfying the contrac-
tual conditions.
Based upon our review of the record, we also must disagree with
Centex's position that the conditions precedent contained in the Sub-
contract and Purchase Agreement prevent any recovery for damages
suffered previous to Just Wood's presentation of the bonds. We
believe that Centex waived the condition precedent by accepting work
performed under the contracts before the required bonds were fur-
nished. At trial, evidence was introduced showing that Just Wood per-
formed scheduling and drafting work under the contracts, which
Centex accepted before the bonds were provided. By accepting work
under the contract, Centex forfeited any right that it had to disavow
the effectiveness of the contracts prior to the provision of the bonds.
The district court did not err in denying judgment as a matter of
law on this issue.
3.
Centex's final argument is that Just Wood did not support its dam-
ages claim as a matter of law because it did not prove the damages
with reasonable certainty. See, e.g., Carr v. Citizens Bank & Trust
Co., 325 S.E.2d 86, 90-91 (Va. 1985). However, we note that Just
Wood provided significant evidence of the loss from its own financial
records. Although Centex attacks the underpinnings of those records
and the related projections, these matters were explored fully at trial.
Based upon our review, we believe that the district court was correct
in concluding that the evidence provided a sufficient basis upon
which a jury could award damages.
15
III.
Finding no reversible error, we affirm.
AFFIRMED
16