change orders to be effective or at least at the summary judgment stage where we are to address or in meet its burden of demonstrating material facts in dispute on this issue the second issue is whether the trial court was correct in its decision when it said article three of three all three of the contract requires a change order for any additional scope of work for which at six payment the issue is whether there were changes in key words scope of court below many examples of change in scope probably the most abundant one was the project started as two identical twelve hundred ton two deck modules and ended up as t non identical three deck modules which called for a great deal more structural steel more piping and more engineering work one needs only to look at appendix each keywords scope of work page two which the way the contract was set up with this multiple types of payment processes and for this reimbursable work that we're talking about if there were material cost increases that were not the subject of a change in scope of material cost went up recognition went from approximately twenty seven million dollars to forty two million dollars that's a scope change now why do we support that it's a scope change because the evidence at the summary judgment stage established that you had mike brown  he was project engineer who contrary to his conclusion we have a david wrote a letter or an email to two kenda veto of press around and said the project grew by more than twenty to forty percent more than i expected you've got all because of this change in the deck or that the change the change in the deck and the fact that they went from two identical modules to reverse scope of reverse hand modules we call it i mean that the modules had to sit on this deck of the platform and it was determined that they could not do so is as as first engineer and therefore they were reversed and that created additional engineering work on a other hand just like on the other hand everybody as a desire or as reported your your are so it's hard to see where the change whether weather change or the change in scope are simply a change argue that is because pemex the owner had performance criteria just designed these modules to meet certain performance criteria and that seems to have filtered down to the improperly to the dresser rand key what relationship that's not accurate appendix east scope of work has a very detailed scope of work for kiewit to perform second in line with that is you do have this was an engineering precariat and construction contract he would took responsibility for the p in the sea directly the procurement in the construction the engineering was delegated to its sub contractor xcel they were called rambo there the evidence at the summary judgment stage that all of the engineering work was delegated to excel kiewit did not establish anything at the summary judgment stage to show to the contrary excel comes forward with a litany of additional scope changes you've got a great deal of dialogue laserscope changes under their subcontract right but the difference being the difference would be if there was evidence in the record below at the summary judgment stage showed key would had to do a certain amount of work and excel only had to do a subset of that work that doesn't exist what exists at the summary judgment stage here is that the engineering work and michael mike brown says the engineering work was assigned by keyword to its subcontractor excel so a scope change for excel has to be a scope change for key what they had the same engineering scope of work excel the issue being the issue being is that the scope of work in the he went dresser and contract is spelled out in exhibit in appendix e that scope of work has a litany of of the engineering piece of that was entirely delegated from the wood to excel we wouldn't be addressing this issue if there was any evidence in the record below that said he would have to engineer a b c and d and excel only had to engineer a and b that doesn't exist here and that's why the scope changes that excel says we're all on top of it's wor are appropriate here you've got the deposition testimony of michael brown referencing e mails from eric dixon addressing scope change you've got an excel record that says here's our scope gro this scope growth important in the scope rowson porton because article three o three of the contract says you need change orders through to support and this is where we get in the whole issue of  yes he would came forward and said we're building a three decade model but there were no change orders entered into by the parties to support the increased cost and there needed to be the contract under my dresser then that the cap that point well but it fell upon it fell upon he would when he would submitted these invoices to establish their right to these invoices the contract says in appendix eight of the contract section seven zero one ed the contract price before change orders is twenty seven point two million and it has a number with great specificity it's very specific twenty seven point two million then right after that seven zero one eight is where you get to that chart but it says below that this is for invoices and you get into that aspect of it's for invoicing purposes that you have these target estimates and actual as well invoice the cost there and it says at the bottom one hundred percent and it still adds up to twenty seven point two million what's also important about this is as the trial court stated he would acknowledge dresser and acknowledge this is all reimbursable work reimbursable work had to be supported by weekly time sheets or summaries each authorised in advance by dress iran's duly authorized representative and signed by that represent of and there no evidence in the trial court to support that requirement to get paid for the work he would argues in response that this was raised on the first time i don't want to put on at the summary judgment argument or here on appeal and that's not it's not entirely are accurate but regardless is the moving party on this issue he would have to establish proof of every essential element of its claim regardless of whether dresser and offered opposition  company this district seven eighty second eleven ninety said when the moving party bears the burden of proof on a claim upon which it is moving for summary judgment it must come forward with evidence of the stablish is beyond peradventure all of the essential elements of its claim and only when it does so does the burden shift nonmoving part there is nothing in the record here that shows he would met that obligation or burden to produce these pre approved signed weekly time sheets or weekly summaries to support its argument lastly the third the third can argument the trial court did not keep these cross motion for summary judgment separate and apart and as difficult as that may be because both sides file for summary judgment on the invoices for b five and six it still must be done in denying dresser rants and motions i got hypertechnical thing i mean whether you're right or not what's the remedy so we send it back and then judge miller right away says ok well now it's presented correct procedure i'll do the exact same thing and i just don't see what that like it should be end of the day i understand know i understand your kind of but i mean we have two things here one we do have error that occurred there we do second when it's our contention that the entirety of the case has to go back and when the entirety of the case goes back you do again you need you know we need to hold rest key to its obligation to show that on the reimbursable work it met all those prerequisites to getting payment we need to show that these were not scope changes we're here on a summary judgment our own decision and at the summary judgment stage we have to construe those facts about th it is it is best on pages seventy six ninety nine one hundred of the hearing on summary judgment is where it's addressed it's not addressed your honor in something more sufficient then the hearing the transcript of the hearing on summary judgment however dress aransas emits that again it's their burden to show they met every element and their failure to do so is is fatal for that collector likewise that's why we get into the fact that that while it may be viewed as a hyper technical argument that could be cured on and remain on the fact that the court d construe in its decision summary judgment in their favor relying upon the arguments that were made in the summary judgment motion the dresser and file is another subject for you b that what they're seeking from you is what they saw from judge miller and that is a good judicial rewrite rewrite the scope of work rewrite the change order provision rewrite the payment conditions of the contract dress a rant fails to identify any section of appendix city that was altered throughout the course of the project in fact it provides no detailed analysis of appendix c appendix the at all appendix c was a performance spec it was a criteria handed down from p m s p m x wanted a solution that had an existing structure in the gulf of mexico they had to compress and modules to a performance spec that they wanted specification about two or three we could have put six it was completely up to our discretion how we would perform the work the design evolution was just that it was an interest process it took time in the reason the contract was priced the way it was is a riginal e in this is in the record dresser rand reached out to keyword free lump sum contract and they gave him this performance back and he would said i can't do that i'll give you hybrid pricing where where dresser ram went wrong and what of the really the heart of the matter is that they had a lump sum contract with the had a hybrid contract with us and that's where they went wrong because they couldn't flange the two up they had to pay us more than they were going to get from dressing rand and that's the bottom line that's not a legal argument that's commercially what happened and that's how we employ stood the contract was set up in such a way that we would perform the work there was a target estimate with approximate milestones that's in the contract those are not my words the target mid of twenty seven would later be trued up through invoicing how we perform the work and that's what we did for each invoice we will provide our back up time and material unit pricing of the lump sum piece which was build on a milestone basis it was fixed we never went over it and we were given that we handed him i've daily time sheets they signed off on and that's in the record and i'll get to the condition preet proceeding argument in just a moment but as we went along in the course of the pot project the way the matter was administered is that we would send an invoice they paid they paid the first four which is in the record and now we  three million which was six million over the target estimate no one made a complaint when we sent our fourth invoice and for b that's when a broccoli and for no reason they stopped paying the parent that  was because they realized they were over budget and so they quit paying us we continue to work and we delivered each and every envoys was submitted in the time sheets approved with respect to inferences and weighing evidence your honor your honors what what happened at the summary judgment stage is that judge miller carefully looked at the evidence and what was it was evidence from a the key would present sort of a bird's eye view in which he said the plan changed and as judge miller pointed out that just means a group beyond what we thought it kept going and going and going while we engineer it and built it it didn't say the scope of work in appendix each changed with dresser ran needed to do it the drawer at the summary judgment stage which they failed to do is show me a drawing show me a specification show me where p max changed the compression criteria because that's all we had give me an output for the modules and that never changed what about the two dec three decades she did raise it's a complete red herring your are if you look at appendix a right here support brown's deposition of how we would try to do it and as the editor of process continued there was no change order take it from two to three or anything like that it's just they went in collaborated with one another was a corroborative process this is how we can get it in this space and we work together we meaning dress rank to get it in there but it wasn't a change to the output of the modules which is all we had so where is that line that's why i don't i mean obviously things are constantly changing what crosses over the line of a change in the scope your honor to keep with a contract like this which is a put this criteria in solution is what the next wanted in order to show that change there would have to been a change to the criteria we didn't have design drawings this wasn't like giving you a design drawing of this building and we move the bench four feet and that's a change order here was an output criteria to answer your question judge costa in order to show that to be a change in appendix b p max through tressa rand would have had to say you know what i want a higher output or i want a different output i want to different result in that never change in judge miller repeatedly pointed out in both sections of both cross motion for summary judgment as evidence that frankly it was present moment thing this is how we have to do it but there wasn't evidence in terms of a contract document like a change order but there was evidence of understanding that it was necessary or desirable to go to the three level but drescher yes as the design of right now where would i found that on the record your honor it would it would most likely be in the deposition of both mike brown who was our program manager in canada vito who was dressed iran's program manager and that's as best i can recall on that issue i take it you would say there is no there's nothing in the record there was not it also they didn't say wait a minute that's a change you need to issue me a change or if we're going to go from two to three the this idea of a change order frankly was never mentioned until us lawyers got involved when they administered the contract between them there was a certain change orders issued for example there was a change order for a new lifting mechanism to lift the structure off the barge and onto the structure into the fixed platform in the gulf in they both parties knew that that was a new scope of work so the issue the change order another thing that kiwi sar dresser ran repeatedly relies on is this idea of the xcel changes most of their brief is is dedicated to this idea of engineering changes a simple reading of these two contracts demonstrates peyton place that they are different scopes of work different change order provisions the xcel contract required a change order for any change any change in fifty anything are change or provision is much more limited  and it doesn't include increased scope of a regional work kinda veto the program manager during the course of the job admonish on more than one occasion it's in the record it's in writing kiewit don't send me change orders for increases in the engineering work for the original scope of work i'm not going to sign up don't give them to me that was his instruction because he believed  understood that the engineering process for this performance criteria contract would grow up and that those increased cost was a risk dresser ran assume it was as you said  veto your honor and we cited both his emails and his testimony on that point do not give me change orders for engineering work increases for the original sculpture work judge structural drawings you will issue these they are listed in their contract all i have is a performance criteria and judge janice i think you pointed this out earlier that a simple read of the contracts demonstrates they're not the same thing that a change is this condition preceded argument it is true that it was raised for the first time in oral argument and then later in this reconsideration motion at the district court level it wasn't briefed before judge miller until reconsideration begging the question of what was being reconsidered if they didn't raise it to begin with but putting that aside for the moment this clause that they rely on which is seven zero one appendix a no little numeral five and all it says is that your invoices will be supported by weekly time sheets and summaries authorized by the company representative on its face is a matter of texas law that is not a condition pre state it is not conditional language such as if except for intel and as you all are very familiar with the texas supreme court has said more than once that quote due to their harshness in operation conditions proceeding are not favorites of the law and here there's just no conditional language as you see in some of the texas cases that address this point but tellingly when the parties particularly dress a rant wanted to put conditional language in the contract they did in fact your honor if your honors if you look at the contract the main body of the contract at page ten article seventy one with respect to the last payment it says this payment of the final invoice is quote conditional upon lien waivers which is a typical con concept in a construction contract but that doesn't turn up with respect to our invoices for milestones throughout the project is a matter of law simply stated that's not a conditional proceed but tear it whatever it was when the prop product of space considerations you what you start putting together in engineering it you're going to have to go up another level of chatter that kind of dynamic that's here when i'm trying to get in my head is that of the nature of the work that they did your honor so if you start with invoice one the first approximate milestone it gives you same categories in obviously with invoice one engineering activities are going to be more high because i fabricate in so you get should disciplines of work as they call in table one of the exit and you have those and you show what occurred during the time you're there were five of them and so each discipline shows what occurred during that time period including we're still in the beginning engineering and then as you go along to invoice say five six seven the engineering work died down out of the you know the the third level i have which purely on paper it was an engineering evolution it never for what the fabrication thing because we started building it that the design was now complete but when they were as judge who can buy it and point out when they were trying to fit this thing in to an existing structure they realized that originally just a factual point they couldn't access it to maintain it was the problem and the problem yeah so in their offshore mexico so they they changed it for an access issue to to be able to work on it in the  gulf with respect to that the late complaint if you will that's raised for the first time an appeal about the sufficiency of our invoices that was never raised at the trial court level we had mike brown's affidavit which presented the end voices and also his affidavit went on to explain how the invoices were made up in paragraph nine of his affidavit he explain specifically found in addressing both motions that the invoices were under spewed that dresser ran never raised an issue about the sufficiency of our evidence they never objected to one piece of our evidence didn't file a countervailing affidavit on any point including the scope of work change and tellingly going back just for a moment to the scope of work idea there were eight depositions from dress eight from kuwait in what is lacking completely in the dresser rand brief and argument is any testimony from dresser ran itself that the scope changed not one witness not one af davit we cited their testimony we relied on it because they all said it didn't change and i put it in the brief but what's telling is that they simply could have had an affidavit or something to raise an issue that criteria changed or performance spec change or work change but instead they were alive primarily on changes to the xcel scope which is which is an entirely different your position is that there was no worry about whether whether it is ambiguous and whether we can look at this early evidence or we send it back for that or you are but your position is we're not get out of here in fact  a few things we agree on it appears address randy and he would agree that the contract was i am big it was because neither party went in that direction judge janice in front of them in front of judge miller or in front of you all in terms of raising ambiguity to the contract itself earlier in the case dresser ran press this idea that it was a lump sum contract but once we got to the summary judgment stage they backed off that which was in their pleadings and in their complaint against us they backed they moved away from that and then went to this change order direction thank you sir have extended your time a little bit yes but i will also been looking for what what where what did it where is the deviation where's the change from this year and there were the records clear there were seven invoices of the reasons why we can and these are such fact issues that we need to go back but what we do know is that it's these three releases that's the crux of all the work that makes up the issues th and said that's a senior management person from dresser and he said it was pointed out that they failed to follow the contract change process that's why that's why we're here they also say that this whole issue of the reimbursement work it was just said to the court that all the contract called for was time sheets authorized by a company representative that's not accurate what it says here it says accepted for payment by signature of a duly authorized company representative that was just left out a few minutes ago each signed in advance each authorized for payment why we don't get into this situation where one party  suggesting them up before they do the work they've got to get clearance for yes because that's the money tracking mechanism so that dresser here is a vase with thinking what they're buying is twenty seven million dollars as we have here they get something that they're charging forty two million dollars that's why this provision is in here and why that's such a significant provision jews and therefore the problem we have here is that if it was not the scope of work delivered by key would then you've got a change in scope and it's easy is captioned scope of work it sets forth in great detail what was to be done and it's comparing that