United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1493

___________

John T. Jones Construction Co., *

*

Plaintiff – Appellee, *

*

v. *

*

Hoot General Construction Company, *

Inc., *

*

Defendant – Appellant. *

*

Des Moines Metropolitan Wastewater *

Reclamation Authority; Black & *

Veatch Corporation, *

*

Defendants. *

___________

Appeals from the United States

No. 09-1494 District Court for the Southern

___________ District of Iowa.

John T. Jones Construction Co., *

*

Plaintiff – Appellant, *

*

v. *

*

Hoot General Construction Company, *

Inc., *

*

Defendant – Appellee, *
1

The Honorable Ross A. Walters, United States Magistrate Judge for the

Southern District of Iowa, presiding with the consent of the parties pursuant to 28

U.S.C. § 636(c).

-2-

*

Des Moines Metropolitan Wastewater *

Reclamation Authority; Black & *

Veatch Corporation, *

*

Defendants. *

___________

Submitted: December 17, 2009

Filed: July 22, 2010

___________

Before BYE, BEAM, and COLLOTON, Circuit Judges.

___________

BYE, Circuit Judge.

Hoot General Construction appeals the district court's1

 verdict against it and in

favor of John T. Jones Construction in an action brought on a contract between the

two companies. Jones, in turn, appeals the district court's refusal to award certain

liquidated damages and the district court's decision not to award attorneys fees related

to claims against third parties. We affirm.

I

The Des Moines Metropolitan Wastewater Reclamation Authority (WRA)

initiated a public improvement project to update one of its wastewater treatment

facilities. WRA hired Black & Veatch Corporation (B&V) as engineers on the project

and had B&V create a set of specifications so WRA could bid the project out to
-3-

general contractors. As part of the project, liners needed to be installed in the

wastewater holding tanks to prevent erosion of the concrete interiors of those tanks.

B&V created specifications for the tanks which described a particular liner system

created by a company called Linabond. WRA required B&V to add the words "or

equal" at the end of those specifications. The contract gave B&V, as project engineer,

discretion to determine what to accept as "equal." WRA solicited bids for restoration

of the wastewater treatment facility.

Jones Construction is a general contractor. Hoot Construction is a

subcontractor specializing in installation of protective lining in wastewater storage

tanks. Hoot only installs systems made by Linabond's main competitor, Ameron. 

Jones, which had worked with Hoot recently on a similar project, informed Hoot it

was accepting subcontractor bids in order to compile a general bid for the WRA

project. When Hoot examined the specifications for the project, it was concerned the

liner specification appeared to be a "single source" specification, requiring the

installation of Linabond. Hoot communicated this concern to Jones and informed

Jones that Hoot would be proceeding on the "or equal" basis if it bid the project. Hoot

contacted Ameron and received assurances from the company that Ameron systems

are considered equal to Linabond in the industry. Hoot conveyed this information to

Jones and informed Jones it had never had Ameron rejected as "or equal" on a project.

Hoot then submitted a bid for the installation of its Ameron liner system. Jones used

this bid in its main bid, and was awarded the project.

Around July 19, 2004, the contract administrator at Jones wrote to Hoot

enclosing Jones's standard subcontract form and requesting that Hoot sign and return

it within ten days. The subcontract required Hoot to perform the work as described

in the main contract and incorporated the main contract as an exhibit. On July 22,

2004, Jones sent a fax informing Hoot the submittals for the project were due July 30,

2004. Phil Hoot, the owner of Hoot Construction, and Theta McDurham, a project

administrator, altered the subcontract to add language basing compensation for the
-4-

project on actual square footage installed, as opposed to on the estimates in the bid.

On August 4, 2004, McDurham sent the altered subcontract signed by Hoot to Jones

and informed Jones the submittals would be mailed that day.

Hoot's company policy was to incorporate its original bid into any subcontract

as a means of limiting the scope of its work to the contents of the bid. Hoot had

followed this policy with Jones on the previous project. However, McDurham forgot

to include the bid as an exhibit to the contract when she sent it to Jones. On August

11, 2004, before Jones responded to the original communication, McDurham faxed

the bid to Jones and asked that it be attached as Exhibit B to the contract. She also

called Scott Nath, Jones's project manager for the WRA project, who said either he

or Jeff Jones, one of the owners of Jones Construction, would sign and return it to

Hoot. McDurham's notes from the call read, "Scott Nath/John T. Jones/Des Moines,

IA . . . requested 'Exhibit' be added to subcontract as was done for Springfield, MO

subcontract. [Springfield was the previous project on which Hoot and Jones had

worked together.] Done – faxed Exhibit (attached) Scott or Jeff T. Jones will approve,

sign and return by fax." Jeff Jones signed the subcontract on August 18, 2004 and

mailed it on Friday, August 20, 2004. Hoot received the signed and approved

subcontract on August 23, 2004. The signed contract did not include Exhibit B.

McDurham informed Mr. Hoot of the omission but Hoot did not pursue the matter.

After receiving the executed contract, and before the deadline specified by

Jones, Hoot sent the project submittals to Jones. Jones received the submittals on

August 25, 2004, and sent them on to B&V for approval the same day. On September

2, 2004, B&V rejected the liner submittal because it did not meet the specification

requirements. Jones informed Hoot of the problem and Hoot contacted B&V directly

to request an explanation. B&V responded, pointing out several differences in the

systems (primarily relating to the way the systems are bonded to the underlying

structure) on September 28, 2004. On October 20, 2004, Hoot contacted Ameron and

requested help convincing B&V the systems were equal. After much back and forth,
-5-

B&V definitively rejected Ameron as an acceptable equivalent under the project

specifications.

On December 1, 2004, Nath wrote to Hoot about an upcoming milestone date

which could trigger liquidated damages for Jones under the general contract if the

liner system were not installed by that time, and informing Hoot that Hoot would be

responsible for such damages. Nath suggested Hoot either install the (more

expensive) Linabond system or hire a Linabond installer to complete the work. On

December 9, 2004, Nath spoke to McDurham and sent a fax informing Hoot that

Jones would have to involve an attorney if Hoot did not respond to the December 1

letter. 

On December 10, 2004, Hoot's attorney responded to Nath's letter. Referring

to "Exhibit B to the Subcontract" she wrote Hoot had contracted to install an Ameron

liner system and the wrongful rejection of Ameron as equal under the project

specifications prevented Hoot's performance. The attorney accused Jones of

breaching the subcontract by failing to gain approval for the Ameron system and

requested Jones either approve the submittal or agree to termination of the contract.

Jones wrote back explaining its position that Hoot was responsible for installing a

lining system in accord with the specifications under the main contract as incorporated

by the subcontract and suggesting more ways to attempt to convince B&V to accept

an Ameron liner. Jones also explained Exhibit B (the Ameron bid) had not been

incorporated into the executed subcontract. On January 7, 2005, Hoot's attorney wrote

to Jones reiterating the contentions in her earlier letter and terminating the contract

effective immediately. Jones replied with its position that Hoot was responsible for

installing a liner in accord with the main contract and that Hoot would have to pay any

costs Jones incurred for installation. Jones also rejected the attempted termination of

the subcontract.
-6-

On February 22, 2005, Hoot sent a packet of information on the Ameron system

to Jones, which submitted it to B&V as a resubmittal for the lining system work. The

submittal was returned without review.

On March 24, 2005, Jones gave Hoot written notice that Hoot was in default

under the contract and had three days to cure. On March 30, 2005, Jones followed

that notice with a seven-day notice of contract termination informing Hoot that if it

did not cure its breach of the contract Jones would hire others to complete the work

at Hoot's expense. Hoot responded it had already terminated the contract.

On June 30, 2005, Jones entered into a new subcontract with Graham

Construction, Inc. for installation of a Linabond system, and commenced this lawsuit

on September 20, 2005. After a bench trial, the district court awarded damages to

Jones in the amount of $232,807. Jones filed a motion to alter or amend the judgment,

which the district court granted in part and denied in part, changing the award to

$241,181.71, and awarding Jones attorney's fees and court costs. Hoot appealed,

arguing there was no contract, or if there was a contract, it necessarily incorporated

Exhibit B and Hoot was not required to install a non-Ameron system under it. Jones

appealed the district court's decision not to award it certain liquidated damages under

the contract and not to award attorneys fees related to claims against third parties

B&V and WRA.

II

Choice of Law

We apply the choice-of-law rules of the forum state in a diversity action. Cicle

v. Chase Bank USA, 583 F.3d 549, 553 (8th Cir. 2009). The contract at issue contains

a choice-of-law provision which designates North Dakota law as the law of the

contract. Jones argues North Dakota law applies to the question of existence of the
-7-

contract because both parties signed the agreement and because there is no evidence

of a dispute with regard to that point.

The district court determined Iowa law applied to the question of formation

because the choice-of-law provision can have no effect until the court determines the

validity of the contract itself. Under Iowa choice-of-law rules, a court must apply the

law of the forum with the "most significant relationship" to the contract. Gabe's

Constr. Co., Inc. v. United Capitol Ins. Co., 539 N.W.2d 144, 146 (Iowa 1995). The

parties agree that if the choice-of-law provision in the contract does not control, Iowa

is the state with the most significant relationship to this contract. The Iowa Court of

Appeals has applied Iowa law to determine the existence of a contract without regard

to a choice of law provision in the purported contract. See Flanagan v. Consol.

Nutrition, L.C., 627 N.W. 2d 573, 579 (Iowa App. 2001). The district court properly

applied Iowa law to determine the existence of the contract. Once the existence of

a contract is determined, the parties' intent as evinced in the choice-of-law provision

controls, see Gabe's Construction, 539 N.W.2d at 146, and we will apply North

Dakota law to questions of interpretation or construction of the contract. 

III

Extrinsic Evidence

The parties engage in a protracted discussion about whether the district court

should have considered extrinsic evidence. The district court properly determined this

discussion has no application to the issue of formation. Parol evidence is admissible

for the purpose of challenging the existence or validity of a contract. 29A Am. Jur.

2d Evidence § 1104; Walker v. Todd, 280 N.W. 512, 514 (Iowa 1938) ("Such

evidence does not contradict the writing within the meaning of the parol evidence rule;

that rule presupposes the existence of a valid contract.").
-8-

Formation

Our jurisdiction in this case is based on diversity, and in such cases we look to

state law for the standard of review on each issue. Weasel v. St. Alexius Med. Ctr.,

230 F.3d 348, 351 (8th Cir. 2000). Iowa classifies the question of whether a contract

was formed to be one of fact, and affirms a lower court's determination of such

question if it is supported by substantial evidence. Flanagan, 627 N.W.2d at 579.

"Evidence is substantial for purposes of sustaining a finding of fact when a reasonable

mind would accept it as adequate to reach a conclusion. When reviewing evidence for

its substantiality, we view it in the light most favorable to upholding the trial court's

judgment." Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995) (internal

citation omitted).

All contracts must contain mutual assent. This assent is usually

given through an offer and acceptance. An offer is a manifestation of

willingness to enter into a bargain, so made as to justify another person

in understanding that his or her assent to that bargain is invited and will

conclude it. We look for the existence of an offer objectively, not

subjectively.

Magnusson Agency v. Public Entity Nat. Company-Midwest, 560 N.W.2d 20, 26

(Iowa 1997) (citation and quotation marks omitted). It is undisputed that a number

of offers and counteroffers were made in this case. The question is which, if any, of

the acts of the parties constituted acceptance of one of those counteroffers.

"A binding contract also requires acceptance of the offer." Id. "The

manifestation of mutual assent may consist wholly or partly of acts other than written

or spoken words." Daeges v. Beh, 224 N.W. 80, 81 (Iowa 1929). The parties agree

there was no binding contract up to the point Jones returned the executed subcontract

to Hoot with Hoot's modified language included but without Exhibit B. The district

court found there was no contract at that point because Jones had modified its
-9-

counteroffer (the subcontract it submitted to Jones with new language) before Jones

accepted, by requesting Exhibit B (the bid) be made an addendum to the contract. The

district court determined Jones's return of that subcontract without Exhibit B as an

addendum constituted a counteroffer, as it failed to accept Exhibit B, a material term

of Hoot's modified offer. The district court found Hoot accepted Jones's counteroffer

by sending submittals to Jones as required for performance under the subcontract.

Hoot argues it never manifested an intent to be bound by the subcontract

because it never agreed to install anything but an Ameron liner. However, the

subcontract called for installation of a liner in accordance with the requirements in the

general contract. Those requirements clearly related to a Linabond liner, with any

other system having to be approved by the engineer as "equal." The general contract

leaves the determination of what is "equal" to the discretion of the engineer. Hoot's

owner testified at trial he noticed the specifications in the contract were for Linabond.

He testified he called Ameron representatives who assured him Ameron was equal to

Linabond in the industry. Hoot passed that information on to Jones's representatives.

In twenty-five years of work, Hoot had never had an Ameron installation rejected. It

was not unreasonable, based on that evidence, for the district court to conclude Hoot

intended to be bound under the assumption the risk of rejection was negligible.

Substantial evidence supports the district court 's conclusion that Hoot's transmission

of the submittals by the deadline evinced intent to be bound by the subcontract.

Exhibit B

Construction and interpretation of a contract are questions of law and the

reviewing court is not bound by the interpretation of the lower court. Hartig Drug Co.

v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999). Whether a contract is ambiguous is also

a question of law. Id. Hoot argues if a contract exists, it includes Exhibit B (the bid),

which Hoot included in its counteroffer by asking Jones to sign and return it with the

executed contract. As discussed above, the district court found Jones rejected that
-10-

offer, and the inclusion of Exhibit B, and counter-offered by signing and returning the

executed subcontract with Hoot's additional language incorporated but without Exhibit

B attached. Hoot argues Jones agreed to make Exhibit B a part of the contract when

Jones's agent (Nath) told Hoot it would sign and return Exhibit B with the subcontract.

The parties argue about Nath's apparent authority and whether Nath was

capable of binding Jones to a contract. However, even if Nath had the authority to

bind Jones, the district court properly found any agreement related to Exhibit B took

place in the course of negotiations over the contract. North Dakota Century Code

§ 9-06-07 states "[t]he execution of a contract in writing, whether the law requires it

to be written or not, supersedes all the oral negotiations or stipulations concerning its

matter which preceded or accompanied the execution of the instrument." However

evidence of a consistent additional term is admissible to supplement an

integrated agreement unless the court find that the agreement was

completely integrated. Whether an agreement is completely or partially

integrated is to be determined by the court as a question preliminary to

determination of a question of interpretation or to application of the parol

evidence rule.

Felco, Inc. v. Doug's N. Hill Bottle Shop, Inc., 579 N.W.2d 576, 581 (N.D. 1998)

(internal quotation marks omitted). "[A]n agreement is not completely integrated if

the written agreement omits a consistent additional agreed term which is... such a term

as in the circumstances might naturally be omitted from the writing." Id. The

subcontract includes an integration clause stating the agreement "represents the entire

integrated agreement between the parties hereto and supersedes all prior negotiations,

representations, or agreements, either written or oral." Hoot contends Exhibit B

necessarily limits the scope of the work Hoot agreed to perform to the contents of the

subcontractor bid. However, the subcontract itself contains a provision delineating

the scope of work as that required under the main contract. The contract is therefore
-11-

not silent on the scope of the work to be performed and any agreement related to

Exhibit B is not admissible to vary the terms of the contract.

Hoot also argues Exhibit B shows the parties never intended for Hoot to install

any system other than Ameron and therefore, Hoot cannot be contractually obliged to

do so. "A contract may be explained by reference to the circumstances under which

it was made and the matter to which it relates." N.D. Cent. Code § 9-07-12. Parol

evidence is "inadmissible to vary or contradict the terms of a written contract between

the parties to the contract." Schwarting v. Schwarting, 310 N.W.2d 738, 739 (N.D.

1981) (quoting Dardis v. Eddy Bros., 223 N.W.2d 674, 679 (N.D. 1974)). If,

however, an ambiguity exists in the contract, parol evidence is admissible to explain

existing essential terms or to show the parties' intent. Atlas Ready-Mix of Minot v.

White Props., Inc., 306 N.W.2d 212, 220 (N.D. 1981). The terms of a contract are

ambiguous when the language is subject to more than one construction or "when good

arguments can be made for either of two contrary positions as to the meaning of a term

in a document." Bye v. Elvick, 336 N.W.2d 106, 111-12 (N.D. 1983). Hoot argues

Exhibit B was part of the subcontract and renders the subcontract ambiguous. This

circular argument fails because Exhibit B is not part of the subcontract and the plain

words of the subcontract incorporate the standards set forth in the general contract and

are not ambiguous.

The district court properly concluded Exhibit B, which was never signed and

never returned to Hoot, was not part of the contract and cannot be admitted for the

purpose of varying or rendering ambiguous the terms of the contract.

Liquidated damages

Jones appeals the district court's decision not to award it certain liquidated

damages under the contract. We review the district court's interpretation of the

contract as a question of law de novo. Hartig, 602 N.W.2d at 797. However, if the
-12-

interpretation was predicated upon extrinsic evidence, the findings of the trial court

are binding on appeal if supported by substantial evidence. Id.

The district court determined Hoot was responsible for some but not all of the

liquidated damages Jones had to pay to WRA under the main contract. The court did

not award Jones damages related to Jones's failure to meet "Milestone 1" under the

main contract because it determined the delays which resulted in the damages were

caused by weather and not by Hoot's failure to perform the subcontract. The record

shows Jones was aware that Hoot was submitting an "or equal" bid that would have

to be approved by the engineers. The parties were still engaged in negotiations with

WRA and the engineer for most of this delay and Hoot had not yet refused to perform

under the subcontract. Jones started construction with time to complete the project but

weather delayed the process by several months, putting it past the Milestone 1

deadline. The district court's determination that the damages arose from a weather

delay, and not from the dispute over the subcontract, was supported by substantial

evidence.

Attorney fees

Jones appeals the amount of attorney fees the district court granted under the

contract. We review the district court's interpretation of the attorneys fees provision

of the contract de novo; underlying findings of fact must be supported by substantial

evidence. Hartig, 602 N.W.2d at 797. Whether a contract is ambiguous is a question

of law. Id. The district court found the contract clearly granted attorney fees with

respect to Jones's prosecution of the claims against Hoot but found the contract was

ambiguous as to whether Hoot was responsible for fees incurred on claims against

WRA and B&V.
-13-

The contract provides,

[s]hould either party employ an attorney to institute suit of [sic] demand

arbitration to enforce any of the provisions hereof, to protect its interest

in any matter arising under this Agreement, to collect damages for the

breach of the Agreement, . . . the prevailing party shall be entitled to

recover reasonable attorney's fees, costs, charges, and expenses

expended or incurred therein.

The district court found Jones was the "prevailing party" with respect to claims

against Hoot and found the contract required Jones to prevail against Hoot to recover

any attorneys fees from Hoot under the contract. However, the court found the

contract was ambiguous as to whether Jones also had to prevail on its claims against

third parties in order to recover from Hoot fees related to prosecuting those claims.

The court found there was no relevant extrinsic evidence on this question and

interpreted the ambiguity against Jones because under N.D. Cent. Code § 9-07-09 "the

language of a contract should be interpreted most strongly against the party who

caused the uncertainty to exist. The promisor is presumed to be such a party." The

district court determined the claims against the municipality and the engineer did arise

from the contract but found Jones would be entitled to recover attorney fees related

to them only if Jones were the "prevailing party" on each of the claims.

The district court found Jones was not the prevailing party with respect to its

claims against WRA and B&V and was not entitled to fees related solely to those

claims. The district court then performed a detailed analysis of the requested fees and

discounted some of the fees it determined were attributable to the claims against WRA

and B&V. The district court did not discount all fees related to those claims because

it found there was a substantial overlap and much of the work done on those claims

would have been necessary to prepare the case against Hoot. Jones does not argue any

error in those calculations but only argues the district court erred in interpreting the
-14-

contract. The district court properly applied North Dakota law to interpret the contract

against Jones and we affirm the award of attorney's fees.

Jones's cross appeal

In its cross-appeal, Jones asks this court to affirm the district court's judgment

on the alternative grounds of promissory estoppel or indemnity. However, since we

are affirming the district court's judgment on the merits as decided, there is no need

to consider the arguments set forth in the cross-appeal.

We affirm.

______________________________