Englewood Terrace Limited v. United States , 629 F. App'x 977 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ENGLEWOOD TERRACE LIMITED
PARTNERSHIP, A MICHIGAN LIMITED
PARTNERSHIP,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5045
______________________
Appeal from the United States Court of Federal
Claims in No. 1:03-cv-02209-MBH, Judge Marian Blank
Horn.
______________________
Decided: October 29, 2015
______________________
DREW G.A. PEEL, Rachlis Duff Adler Peel & Kaplan
LLC, Chicago, IL, argued for plaintiff-appellant. Also
represented by DON SAMUELSON, Law Offices of Don S.
Samuelson, Lake Forest, IL.
2 ENGLEWOOD TERRACE LIMITED v. US
DOUGLAS K. MICKLE, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by STUART F. DELERY, ROBERT E. KIRSCHMAN,
JR., KENNETH M. DINTZER; LORRAINE C. SHOTO, GREGORY
G. GUSTIN, MARIA T. BAGUIO, United States Department
of Housing and Urban Development, Chicago, IL.
______________________
Before DYK, MOORE, and WALLACH, Circuit Judges.
DYK, Circuit Judge.
This case is a breach of contract action brought by
Englewood Terrace Limited Partnership (“Englewood”)
against the United States. In 2012, we held that the
United States was liable for breach but remanded with
instructions to determine Englewood’s damages, including
measuring and deducting from Englewood’s lost revenues
any costs or expenses it saved as a result of the breach.
Englewood Terrace Ltd. P’ship v. United States (Eng-
lewood VII), 479 F. App’x 969, 973-74 (Fed. Cir. 2012). On
remand, the Court of Federal Claims (“Claims Court”)
found that Englewood failed to produce sufficient evidence
to enable determination of saved costs and expenses and
held that Englewood was not entitled to any damages.
Englewood Terrace Ltd. P’ship v. United States (Eng-
lewood VIII), 113 Fed. Cl. 718, 740-41 (2013). We affirm.
BACKGROUND
In 2000 Englewood and the United States Depart-
ment of Housing and Urban Development (“HUD”) exe-
cuted a housing assistance payment (“HAP”) contract
providing rent subsidy payments to Englewood on behalf
of its tenants in South Pointe Towers (“South Pointe”), an
apartment building in Chicago, Illinois. Englewood VII,
479 F. App’x at 970. Englewood sued in the Claims Court
ENGLEWOOD TERRACE LIMITED v. US 3
for breach of this contract, and the Claims Court awarded
damages in the amount of lost revenues, i.e., the rent
subsidy payments that Englewood would have received
under the contract. Englewood Terrace Ltd. P’ship v.
United States (Englewood II), 79 Fed. Cl. 516, 551 (2007);
Englewood Terrace Ltd. P’ship v. United States (Eng-
lewood V), 94 Fed. Cl. 116, 130 (2010). On appeal, we
affirmed the Claims Court’s determination that HUD had
breached the HAP contract and that Englewood lost
rental revenues of $3,272,217 as a result. Englewood VII,
479 F. App’x at 972. However, we vacated the damages
award. The Claims Court had awarded Englewood lost
rental revenues without deducting costs and expenses
Englewood saved—i.e., avoided paying—as a consequence
of HUD’s breach. We remanded to the Claims Court with
instructions to determine Englewood’s saved costs and
expenses, deduct them from the lost revenues, and deter-
mine whether there were lost profits and, if so, their
amount.
On remand, the Claims Court ordered the parties to
identify saved expenses and costs. The government
presented such a list, relying on Englewood’s own finan-
cial records, which included major repairs totaling
$3,514,568 and “other routine operating expenses” in the
amount of $1,830,993, and argued that these expenses
and costs should be deducted from revenues, with the
result that there were no lost profits.
Englewood had not generated evidence concerning
saved expenses in the original Claims Court proceedings,
before the first appeal. On remand, though agreeing that
repairs and operating costs were relevant categories of
potentially saved expenses, Englewood declined to gener-
ate and present its own list of what it claimed were saved
costs or expenses. Nonetheless, on November 20, 2012,
the Claims Court reopened the record and gave Eng-
lewood another opportunity to produce necessary evi-
4 ENGLEWOOD TERRACE LIMITED v. US
dence. Englewood submitted additional documents in
early 2013 to supplement the record.
The Claims Court found Englewood’s evidence insuffi-
cient to determine its saved expenses. “In reviewing the
record as a whole, this court[] cannot determine which, if
any, were costs not avoided by the breach.” Englewood
VIII, 113 Fed. Cl. at 740. The Claims Court noted that
Englewood’s primary evidence of payment consisted of
summary entries from its general ledgers. The Claims
Court found the ledgers inadequate to establish that
Englewood had made any payments of expenses during
the damages period, including any repairs (major or
minor) to South Pointe or routine operating expenses.
The Claims Court found Englewood’s additional documen-
tary evidence to be similarly insufficient and held that
Englewood had failed to prove its avoided costs and
expenses. Without reaching the question of whether the
government’s saved costs figures were correct, the Claims
Court reduced the lost profits damages award to zero.
Englewood appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
We review de novo conclusions of law by the Claims
Court and review its factual findings for clear error.
Englewood VII, 479 F. App’x at 972 (citing Bell BCI Co. v.
United States, 570 F.3d 1337, 1340 (Fed. Cir. 2009)).
Evidentiary rulings by the Claims Court are reviewed for
abuse of discretion. Yankee Atomic Elec. Co. v. United
States, 536 F.3d 1268, 1272 (Fed. Cir. 2008) (citations
omitted).
A plaintiff seeking lost profits or expectation damages
for breach of contract generally bears the burden to prove
“what might have been.” Glendale Fed. Bank, F.S.B. v.
United States, 239 F.3d 1374, 1380 (Fed. Cir. 2001). We
have previously held that, “[t]o recover lost profits for
ENGLEWOOD TERRACE LIMITED v. US 5
breach of contract, the plaintiff must establish by a pre-
ponderance of the evidence . . . that . . . a sufficient basis
exists for estimating the amount of lost profits with
reasonable certainty.” Energy Capital Corp. v. United
States, 302 F.3d 1314, 1324–25 (Fed. Cir. 2002) (citations
and internal quotation marks omitted).
In that connection, “a non-breaching plaintiff bears
the burden of persuasion to establish both the costs that it
incurred and the costs that it avoided as a result of a
breach of contract.” Bos. Edison Co. v. United States, 658
F.3d 1361, 1369 (Fed. Cir. 2011) (citing S. Nuclear Oper-
ating Co. v. United States, 637 F.3d 1297, 1304 (Fed. Cir.
2011)). Typically, the breaching party first prepares a
“model of the non-breach world.” Bos. Edison Co., 658
F.3d at 1369–70; see also S. Nuclear Operating Co., 637
F.3d at 1304; Energy Nw. v. United States, 641 F.3d 1300,
1307–08 (Fed. Cir. 2011). Once the defendant identifies
expenses and costs that the plaintiff avoided as a result of
the breach, the plaintiff “must incorporate them into a
plausible model of the damages that it would have in-
curred absent the breach,” or else it will fail to prove lost
profits with sufficient certainty. Bos. Edison Co., 658
F.3d at 1369. The Claims Court here found that Eng-
lewood failed to meet its burden, stating,
This court has given the plaintiff at least four
separate opportunities, over many years, to gather
and submit to the court documentation that would
establish its claims . . . . [P]laintiff’s record-
keeping, retention, and presentation has been lim-
ited, scattered and disorganized, despite the nu-
merous opportunities provided by the court to
bring plaintiff’s evidence together in a proper evi-
dentiary form for presentation in this court.
6 ENGLEWOOD TERRACE LIMITED v. US
Englewood VIII, 113 Fed. Cl. at 732. The Claims Court
concluded that Englewood’s inability to prove its avoided
costs and expenses precluded it from awarding damages.
On appeal Englewood does not dispute that it bore the
burden of proof on saved expenses or that the government
offered a model of the non-breach world. Rather, Eng-
lewood contends that its evidence established that there
were no saved costs, entitling it to recover its lost reve-
nues in their entirety. For simplicity’s sake, we focus on
the two largest expenses that the government submits
were saved by Englewood as a result of HUD’s breach:
major repairs of South Pointe and routine operating
expenses. These savings, allegedly amounting to
$3,514,568 and $1,830,993, respectively, together far
exceed Englewood’s lost revenues of $3,272,217. The
government’s calculations were based on Englewood’s own
financial records and ledgers.
Although the Claims Court did not decide whether the
government’s calculations of these savings were correct, it
held that Englewood had failed to meet its own burden to
establish the amount (or the absence of) saved expenses.
“The court agrees with the defendant that ‘Englewood
offered, at best, inadequate evidence that it paid any of its
obligations. This fact alone should bar the award of any
damages.’” Englewood VIII, 113 Fed. Cl. at 740 (empha-
sis in original).
Englewood argues on appeal that it provided evidence
sufficient to prove it paid for major repairs and routine
operating expenses. As to operating expenses it relies
primarily on entries from its general ledgers. The Claims
Court concluded that this evidence was inadequate.
“[Englewood’s] ledgers alone are not sufficient documen-
tation.” Englewood VIII, 113 Fed. Cl. at 737. The Claims
Court noted that the ledger entries were generated years
after the transactions they purport to record and include
ENGLEWOOD TERRACE LIMITED v. US 7
no supporting documentation confirming payment was
actually made to creditors. Englewood cites Kansas Gas
& Electric Co. v. United States, 685 F.3d 1361 (Fed. Cir.
2012), for the general proposition that ledger entries can
suffice to prove lost profits. Englewood is correct that
there is no per se rule that lost profits cannot be proved
with ledger entries. But the Claims Court did not apply
any per se rule, and, in any event, Kansas Gas is not
analogous to the present case, as the evidence deemed
sufficient there included detailed accounting records that
complied with Federal Energy Regulatory Commission
regulations. Id. at 1369. By contrast, Englewood has
produced only post-dated summary ledger entries. We see
no clear error in the Claims Court’s ruling that the gen-
eral ledgers here were unreliable.
In addition to the ledger entries, Englewood presented
trial exhibits summarizing its finances in 2002, 2003, and
2004, but the Claims Court dismissed these, noting that
each exhibit was based on the same general ledgers. The
Claims Court also reviewed the additional documents
added to the record on remand and concluded that these
documents “fail to reveal any payments affirmatively
made by plaintiff.” Englewood VIII, 113 Fed. Cl. at 740.
Englewood’s ledgers are not corroborated by supporting
evidence, e.g., receipts or cancelled checks, proving that it
actually made any payments. Moreover, Englewood
provided no authenticating testimony with respect to the
ledgers.
With respect to repairs, Englewood relies on a certi-
fied contractor’s requisition, a summary of construction
payouts, and contractors’ lien claims. But there was no
testimony that these documents represented the $3.5
million in major repairs. Moreover, testimony from
Englewood’s representative, Donald Samuelson, makes
clear that repairs paid out of the Reilly loan were not the
same $3,514,568 in major repairs in the government’s
8 ENGLEWOOD TERRACE LIMITED v. US
model. Mr. Samuelson stated, “[t]he reference to the
major repairs were simply a conversation. It was not a
legal obligation by Englewood to do anything,” Joint
Appendix (“J.A.”) 372, “[the $3.5 million in major repairs]
were never paid,” J.A. 384, and “[the repairs] were not
made.” 1 J.A. 384.
When the government presented a plausible model of
saved expenses that included $3,514,568 in major repairs
to South Pointe, the burden shifted to Englewood to prove
what repairs it had actually made. The Claims Court
found that Englewood failed to do so, having offered “no
evidence or documentation of what repairs were made by
Englewood during the damages period.” Englewood VIII,
113 Fed. Cl. at 736.
With respect to whether Englewood was obligated to
make the major repairs, at one point Englewood appeared
to admit that it had such an obligation, see Englewood
VIII, No. 1:03-cv-02209-MBH, ECF No. 88-16, at 5 (Aug.
6, 2001 letter from Donald Samuelson), and, in any event,
it never offered proof that there was no such obligation or
1 “MR. SAMUELSON: Well, the major repairs that
he referred to were discussed and outlined in August of
2001.
THE COURT: But they actually were expended or
not?
MR. SAMUELSON: No. They never materialized.
THE COURT: Okay. So these dates we’re talking
about are just for the major repairs?
MR. SAMUELSON: Yes.
THE COURT: Let’s be very precise, please. But they
were never paid.
MR. SAMUELSON: They were never incurred. They
were not made, they were not incurred, they were not
paid.” J.A. 383–84.
ENGLEWOOD TERRACE LIMITED v. US 9
that the obligation was limited. The Claims Court cor-
rectly concluded that, “[i]f plaintiff is unable to establish
evidence of costs it would have been obligated to pay in a
‘but for’ world, the court will not be able to assess plain-
tiff’s damages award.” Englewood VIII, 113 Fed. Cl. at
732 (citing inter alia Kan. Gas, 685 F.3d at 1371; Yankee
Atomic, 536 F.3d at 1273).
Despite its explicit concessions that it never paid for
major repairs, Englewood suggests for the first time at
oral argument that the $3,514,568 in repairs were encom-
passed and paid for by Englewood as part of the more
than $7 million of construction carried out in 2003 and
2004 and paid out of the Reilly Mortgage loan (a non-
recourse loan insured by HUD that Englewood secured in
2002 and on which Englewood ultimately defaulted).
But Englewood’s complete failure to advance that theory
in the Claims Court constitutes a waiver. Even Eng-
lewood’s reply brief fails to raise the theory and instead
distinguishes costs and expenses paid from the Reilly loan
from major repairs and routine operating costs, which it
does not list as coming from the Reilly loan. Reply Brief
at 8.
In summary, the Claims Court found that “plaintiff’s
repeated failure to keep, locate, and submit to the court
adequate records has been a consistent problem through-
out the above-captioned case, despite numerous opportu-
nities accorded to plaintiff to identify and offer specific
documentation, including now on remand.” Englewood
VIII, 113 Fed. Cl. at 737. We see no clear error in the
Claims Court’s determination that the fragmentary and
inconsistent evidence provided by Englewood was general-
ly insufficient to prove its costs and expenses. “In fur-
nishing incomplete records of its own payments, the
plaintiff placed itself in a position to receive no award at
all.” Id. at 740. Our court has recognized the authority of
the Claims Court to award zero damages when the non-
10 ENGLEWOOD TERRACE LIMITED v. US
breaching party fails to prove its lost profits with reason-
able certainty. 2 Because Englewood failed to prove the
expenses and costs savings element of its lost profits with
reasonable certainty, the Claims Court was justified in
awarding no damages.
For the foregoing reasons, we affirm the judgment of
the Court of Federal Claims.
AFFIRMED
COSTS
Costs to the United States.
2 See, e.g., Kan. Gas, 685 F.3d at 1371 (“Without
record evidence about the research costs in both worlds,
the trial court could not perform the necessary compari-
son between the breach and non-breach worlds and thus
could not accurately assess the damages. . . . Thus, the
Court of Federal Claims did not err in disallowing damag-
es . . . .”) (citations omitted); Cal. Fed. Bank v. United
States, 395 F.3d 1263, 1268 (Fed. Cir. 2005) (“The inabil-
ity to prove by a preponderance of the evidence that
profits would have been made but for the breach will
therefore preclude recovery on a lost profits theory.”);
Energy Nw., 641 F.3d at 1308; Yankee Atomic, 536 F.3d at
1273; Bluebonnet Savings Bank, F.S.B. v. United States,
266 F.3d 1348, 1358 (Fed. Cir. 2001).