PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LARRY SNYDER AND COMPANY, Plaintiff-Appellant,

v. CLARK MILLER, D/B/A AMERICAN UNDERGROUND UTILITIES, Defendant-Appellee. No. 10-5045

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 07-CV-455-PJC)

Thomas W. Millington of Millington, Glass and Love, Springfield, Missouri, for Plaintiff-Appellant. Roger N. Butler (Jennifer L. Struble with hi m on the brief), of Secrest, Hill, Butler and Secrest, Tulsa, Oklahoma , for Defendant-Appellee.

Before KELLY, EBEL, and GORSUCH, Circuit Judges.

EBEL , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### August 15, 2011

Elisabeth A. Shumaker Clerk of Court2 In this appeal, Plaintiff–Appellant Larry Snyder and Company (Snyder) argues that the district court erred by granting summary judgment to Defendant–Appellee Clark Miller, doing business as American Undergro und Utilities (Miller), on Snyder’s breach of contract claim. Snyder and Miller entered into a subcontract agreement, under which Miller would install utility trenches underneath what would become a parking lot for an apartment complex. Miller pe rformed the work, but once th e asphalt for the parking lot was installed, the trenches settled and the parking lot was damaged. Snyder requested that Miller repair the entire pa rking lot, but Miller refused, arguing that the subcontract only required it to repair the areas of the parking lot that actually settled. We agree with the district court that the subcontract unambiguously governed the extent of the repair required of Miller. Acco rdingly, no genuine issu e of material fact exists concerning Miller’s liability for repair work that exceeded the requirements of the subcontract and summary judgment was appropr iate. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM. I. Background Snyder entered into an ag reement with the Housing Au thority of the Osage Tribe (Osage), under which Snyder ag reed to be the general c ontractor on the Stoneridge Estates apartment complex. In the contract between Snyder and Osage, Osage required every subcontract to have the following “flow-th rough” clause: Contractor shall include with every Subcontractor agreement the following language: Subcontractor binds itself to Contractor and Owner and is obligated to Contractor and Owner in the same manner and to the same3 extent that Contractor is bound a nd obligated to Owner under the Prime Contract. All rights which Owner may exercise and enforce against Contractor may be exercised and enforced by Contractor against Subcontractor, in the event of any dispute between the Owner and Contractor. Subcontractor shall be bound by all decisions, directives, interpretation[s] and rulings of the owner or the Architect, at Owner[’]s option, including Owner’s termination or suspension of Contractors. (Aplt. App., vol. I at 91.) Snyder then entered into a subcontract agreement with Miller, under which Miller agreed to install utility tr enches underneath what would become a parking lot for the apartment complex. Snyder’s subcontract with Miller contained the language of the flow-through clause as specified in the co ntract between Snyder and Osage. The subcontract also contained the following pr ovision explaining Miller’s responsibilities: Responsible for all bedding and comp action of trenches per contract documents, city requiremen ts and the geotechnical re port. This to include 18” minimum of crushed stone base materi al placed in 8” lifts in all utility and storm sewer trenches under area s receiving paving per plans. All trenches to be compacted to 95% per contract documents. In the event that settlement or failure should occur unde r parking lots, sidewalks, curb and gutter, and landscaped areas resulting in damage to other trades work, this subcontractor is responsible to rem ove the damaged area, acquire proper compaction and replace area at this subcontractor’s expense

. (Id. at 59 (emphasis added).) We will refer to the last clause in that provision as the repair clause. Miller excavated, filled, and compact ed the trenches, and then another subcontractor installed the asphalt for the pa rking lot. After the installation of the parking lot asphalt, the trench es settled, resulting in dama ge to the parking lot.4 Miller’s engineers, Standard Testing and Engineering Company, inspected the settled areas and recommended that “[t]he asphalt in the paved areas . . . be cut back so

that it is wider than the trench (over cut) by two feet on each side before repaving.” (Id. at 219.) Osage, relying on the recomme ndation of its engineers, Kaw Valley Engineering, instead insisted that Miller re pair the entire parking lot, not just the damaged areas. So after conferring with Osag e, Snyder sent a letter to Miller requesting eight repairs: (1) set up traffic control and co ordinate phasing with Osage and Snyder, (2) sawcut and remove asphalt pavi ng in the marked areas, (3) sawcut and remove the curb and gutter that are marked, (4) excavate th e trenches and backf ill the material with flowable fill up to the bottom of the asphalt paving, (5) form and place the curb and gutter, (6) mill the top 1 1⁄2” of asphalt and repa ir the entire parking lo t, (7) re-strip the entire parking lot, and (8) remove all ex cess demolished material and clean-up. Miller agreed to make most of the repa irs requested except for (6) mill the top 1 1⁄2” of asphalt and repair the entire parking lot and (7) re-strip the entire parking lot. Miller continued to refuse to perform those two repairs, and so Snyder contracted with another subcontractor to perform all of the repairs requested. Miller filed suit against Snyder for damages arising out of a contract dispute on a related project. Then, Snyder filed a counte rclaim for breach of contract regarding Miller’s failure to repair the trenches, s eeking $295,352.92, the damages incurred in repairing the entire parking lot. The parties stipulated to the amount of payment due on5 the related project, so those claims were di smissed by Miller. Then, the district court realigned the parties with Snyder as pl aintiff and Miller as defendant. After discovery, both Snyder and Mille r filed motions for summary judgment.

The district court entered an order on Decemb er 30, 2009, granting summary judgment in favor of Miller. Then, Snyder filed a motion to reconsider. The district court issued a new order on March 2, 2010, but it reached the same conclusion. Snyder timely appealed.

II. Discussion We review the district court’s grant of summary judgment de novo. Evers v. Regents of Univ. of Colo. , 509 F.3d 1304, 1308 (10th Cir. 2007). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). According to the subcontract, Missouri law governs this case. Under Missouri law, a contract is ambiguou s only if its term s are susceptible to fair and honest differences. Eisenberg v. Redd , 38 S.W.3d 409, 411 (Mo. 2001) (en banc). “In contractual interpretation, the pr imary rule is to ascertain the intent of the parties and then give effect to that intent. When there is no ambiguity in the contract, the intent of the parties is to be gathered from [the cont ract] alone.” Lueckenotte v. Lueckenotte , 34 S.W.3d 387, 395 (Mo. 2001) (en banc) (per curiam) (alteration in original). “Courts presume that the words used ar e intended to have their natu ral and ordinary meaning.”

Id. Further, courts should construe each term of a contract to avoid rendering other terms6 meaningless. City of Harrisonville v. Pub. Water Supply Dist. No. 9 , 49 S.W.3d 225, 231 (Mo. Ct. App. 2001). So courts prefer a c onstruction that attribut es a reasonable meaning to all the provisions of the ag reement to one that leaves so me of the provisions without

function or sense. Id. Snyder argues that, according to the un ambiguous contract language, Miller was bound by Osage’s decision that the damaged area was the entire parking lot. In making this argument, Snyder relies on the flow-t hrough clause, which binds Miller to all decisions, directives, interpretations, and ru lings of Osage, as well as the following language in the subcontract: SUBCONTRACTOR agrees to be bound to the CONTRACTOR and conditions of the CONTRACT DOCUME NTS to the same extent as the CONTRACTOR is bound to the OWNER. . . . All work performed under this Agreement and CONT RACT DOCUMENTS shall be completed to the full satisfaction of the OWNER, ARCHITECT, and CONTRACTOR. (Aplt. App., vol. I at 57 (emphasis added).) We will refer to this provision as the fullsatisfaction clause. Snyder contends that the district court’s order overlooks these contract provisions and renders them mean ingless. According to Snyder, these provisions show that Osage “had the final say on the scope and extent of repair and remediation.” (Aplt. B. at 24.) Therefore, when Osage determined that repair of the entire parking lot was necessary, the subcon tract required Miller to repair the entire parking lot. Miller, however, argues that Snyder’s inte rpretation renders the repair clause meaningless because Snyder demands repair s, relying on the flow-through and full-7 satisfaction clauses, which exceed those cont emplated in the repair clause. Miller contends that all of these provisions should be interpreted consistently with each other, with the repair clause limiting Miller’s obliga tion to repair only the damaged area, or the area where the trenches settled, not the entire parking lot. Finally, Snyder responds that the dist rict court and Miller’s interpretation incorrectly elevates more specific contractual terms over more general terms. “The rule of contractual interpretation that specific words take precedence over general words applies only where there is an inconsistenc y or ambiguity in the language of the agreement.” Frager v. Frager , 949 S.W.2d 173, 177 (Mo. Ct. App. 1997). Because, Snyder argues, both parties and the district c ourt agreed that no ambiguity exists in the subcontract, the district court should not have elevated the more sp ecific words of the repair clause over the more general words of the flow-through and full-satisfaction

clauses. First, we must determine whether an am biguity exists in the subcontract between Snyder and Miller. Reading th e natural and ordinary langua ge of the agreement, we do

not find that the terms are sus ceptible to fair and honest di fferences. None of the terms are duplicitous, indistinctive, or uncertain. See Rodriguez v. Gen. Accident Ins. Co. , 808 S.W.2d 379, 382 (Mo. 1991) (en banc) (“An ambiguity arises wh en there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.”). Further, both parties agree that the terms of the agreem ent are not ambiguous. Therefore, we must next ascertain the intent of the par ties from the language of the contract.8 In interpreting the subcontract, we seek to avoid any interpretation that renders a provision meaningless. See City of Harrisonville , 49 S.W.3d at 231. The provisions at issue in this case can be interpreted to pr oduce harmony and meaningfulness between the repair, full-satisfaction, and flow-through cl auses. Under the repair clause of the subcontract, Snyder and Miller manifested th eir intent concerning how Miller should repair damaged area in the event that settleme nt occurred under the parking lot: “In the

event that settlement or failure should oc cur under parking lots, . . . [Miller] is responsible to remove the damaged area, acqui re proper compaction and replace area at [Miller’s] expense.” (Aplt. App., vol. I at 59.) The full-satisfac tion clause simply ensures that the repair work completed according to the repa ir clause was performed to the full satisfaction of Snyder and Osage, th ough the satisfaction of Snyder and Osage must be reasonably anchored within the c ontract taking fair account of all of its provisions. See Erney v. Freeman , 84 S.W.3d 529, 535 (Mo. Ct. App. 2002) (“When a contract is contingent on one of the parties’ satisfaction, the party must exercise judgment in good faith and as a reasonable pers on—not arbitrarily without a bona fide reason for his or her dissatisfaction.”); Burns v. Reis , 191 S.W. 1096, 1098–99 (Mo. Ct. App. 1917) (“[W]here the thing to be done under a contract does not pertain to articles of taste or fancy, and it is stipulated that it shall be done to the satisfaction of one of the contracting parties, the party to be satisfied cannot ac t arbitrarily or capric iously in the matter, and . . . the law will say that he is satisfied with that which a cont racting party under the circumstances ought to be satisfied.”). Th e flow-through clause does not purport to9 abrogate other provisions of the contract. Although it binds Miller to the decisions of Osage, such decisions must be reasonable and faithful to the terms of the entire contract.

Cf. 13 Am. Jur. 2d Building and Construction Contracts § 34 (2011) (“One who has performed work under a building or construc tion contract conditioning the obligation to pay for the work upon the owner’s satisfaction with it is entitle d to recover, as against the owner’s claim of dissatisfaction, if the work performed is such that a reasonable person would be satisfied by it; in these cases, the owner’s satisfacti on is determined by objective criteria.”). This interpretation does not elevate the specific repair clause over the general flow-through and full-satisfaction clauses, as Snyder argues, but instead places equal emphasis on all thr ee. We prefer this constr uction because it attributes a reasonable meaning to all three provisions instead of leaving one or some of the provisions without function or sense. If we gave controlling effect to the flow-thr ough clause but not th e repair clause as Snyder desires, then we would render the re pair clause meaningless. Such an action would be contrary to the well- established principle that a c onstruction that would render a provision meaningless should be avoided. Therefore, we re ject Snyder’s interpretation and instead interpret the provisio ns of the subcontract in harmony: the repair clause limits Miller’s obligation to repair only those areas ofthe parking lot that settled, and the flowthrough and full-satisfaction clauses ensure that Miller performs those repairs to the10 satisfaction of Osage and Snyder. 1

1 We note that one provision of the contract between Snyder and Osage, incorporated into the subcontract by reference provides as follows:

The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or pa rtially completed, of the Owner or separate contractors caused by the Co ntractor’s correction or removal of Work which is not in accordance with the requirements of the Contract Documents. (Aplt. App., vol. I at 136.) One could argue th at this provision requires repair of the entire parking lot because repair ing only the areas where the trenches settled would leave the entire lot damaged. But S nyder failed to adequately raise that argument in its brief. This provision is cited twice without any ar gument or explanatio n and not referenced again until oral argument. Therefore, we need not decide whether this provision applies in this case. See Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 15 47 (10th Cir. 1995) (explaining that issues not ad equately briefed will not be c onsidered on app eal even when a party attempts to assert thos e claims at oral argument). In any event, in light of the other provisi ons in this contract, we would likely find this argument to be unpersuasive even if raised on the record before us. The only evidence in the record be fore us that supports this argum ent is the following statement of Kaw Valley Engineering: While the repair recommended by th e contractors materials testing laboratory will remedy the areas that ha ve failed, it is the opinion of Kaw Valley Engineering that a remedied pa rking lot will not pe rform as well as a new parking lot. The saw cut ed ges throughout the parking lot will provide conduits for water infiltrati on to the pavement subgrade. Once water reaches the subgrade, failure of the pavement will be imminent. Kaw Valley Engineering believes that the H ousing Authority of the Osage Tribe paid for a new parking lot with the proj ect, and that is what they deserve. (Aplt. App., vol. II at 416–17.) But that statement does not convince us that Miller should bear the cost of repl acing the entire parking lot for two reasons. First, Kaw Valley does not support this conclusory allegation with any evidence or testing showing that saw cut edges will provide conduits for water infiltration. See Ford v. West , 222 F.3d 767, 777 (10th Cir. 2000) (“Vague, conclusory stat ements do not suffice to create a genuine Continued . . .11 Snyder sought the full damages sustained in repairing the entire parking lot. But the repair clause limits Miller’s obligation to repair only the damaged areas where the

trenches settled. Because the subcontract’s repair clause go verned the repairs required of Miller, there is no genuine issu e of material fact concerni ng Miller’s liability for repair work that exceeded those requi rements. Therefore, summar y judgment was appropriate, and the district court did not err by granting summary judgment to Miller.

III. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s order granting summary judgment in favor of Miller.

______________________________________ Cont. issue of material fact.”). S econd, in the same breath that Kaw Valley claims that the entire parking lot needs to be resurfaced, Ka w Valley also concedes that repairing only the settled areas “will remedy the areas that have failed.” The repair clause only required Miller to remedy the areas that failed, and Mille r offered to do just that. We cannot say based on this clause that the cont ract required Miller to do any more.