USCA1 Opinion

November 29, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________
No. 93-1541
UNITED STATES OF AMERICA, for
u/b/o LUIS A. CABRERA, S.E.
A SPECIAL PARTNERSHIP,
Plaintiff, Appellee,
v.
SUN ENGINEERING ENTERPRISES, INC.,
AND CNA CASUALTY OF PUERTO RICO,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos

Antonio Fust , U.S. District Judge]

___________________
____________________
Before
Breyer, Chief Judge,
___________

Coffin, Senior Circuit Judge,

____________________
and Torruella, Circuit Judge.
_____________

_____________________

Federico Lora-L pez for appellants.

___________________
Thomas Doran-Gelabert, with whom Eduardo Castillo-Blanco was
_____________________
_______________________
on brief for appellee.

____________________
____________________

Per Curiam.
__________
the Miller

This case concerns an action brought under

Act, 40 U.S.C.

270a-f (1986),

United States for

the use and

("Cabrera"),

subcontractor,

in the name

benefit of Luis A.
against

its

surety,

CNA

Casualty

complaint, Cabrera claimed

with Sun Engineering.
District Court for
$44,769.25.
the

After

of

Puerto Rico

Cabrera, S.E.

Sun

Enterprises, Inc. ("Sun Engineering"), a general

Engineering

contractor, and

("CNA").

money it was due under

of the

In

the

a subcontract

a non-jury trial, the United States

the District of

Puerto Rico awarded

Cabrera

Sun Engineering then filed this appeal claiming that

district court

improperly amended

the

pre-trial order

at

trial, and that

court's

there was insufficient

findings of

fact.

For the

evidence to support
reasons stated

the

herein, we

affirm.
I.
I.

BACKGROUND
BACKGROUND

We review the facts in favor of the prevailing party at

trial,

Cabrera.

Financial Corp.,
________________
Engineering

is

contractor for

See
___

American Title Ins. Co. v.

__________________________

959

F.2d

345,

construction

a federal project

the United States

346 (1st
company

Cir.

which

1992).
was

the

Sun

prime

involving partially renovating

General Post Offices in San

("the Project").

East West
__________

Juan, Puerto Rico

Cabrera was a subcontractor on the Project.

December 21, l989,

Mr.

On

Luis Cabrera submitted a price quotation

to Mr. Francisco Jim nez, the president of Sun Engineering, which

detailed, item by item, the work which the Project blueprints and
specifications required with respect to supplying

and installing

-2-

vinyl floors, dry wall partitions,

quotation estimated
Mr. Cabrera and

the cost

and acoustical ceilings.

of the work

to be

Mr. Jim nez then discussed the

The

$106,707.35.1

precise terms of

the quotation.
to

Cabrera

Although

On January 8, l990, Sun Engineering sent a letter

accepting

the

Cabrera's

parties had

in the quotation,

price of

$80,000, an absolute
upon.

the work

"estimated" contract

price for the contract

and

quotation.

changes to

and a reduced

Rather, Cabrera

agreed that Sun

21, l989

negotiated some

specified

agreed

December

Sun Engineering

Engineering would pay Cabrera based

was never

informally

on the work

Cabrera actually performed.

After the contract was formed, Cabrera
During the course of the Project,
that

Cabrera

original

perform

contract.

Mr. Jim nez verbally requested

additional work
This

work involved

Ismael El as, the designer of the Project

Project

inspector for the

Cabrera to
installing.

Cabrera

not

encompassed

floor underlays.

by the

Mr.

who also served as the

Post Office, also

make changes with

commenced work.

verbally requested

respect to some partitions

completed all work required

it was

on the Project

by June 5, l99l.

Cabrera billed Sun Engineering $105,495.39 for the work

it performed.

Sun Engineering made progress

totalling $60,726.14.

payments to Cabrera

Sun Engineering refused to pay Cabrera the

____________________

1 At trial, there was some dispute regarding the precise dollar

figure of this initial quotation. The present appeal does not in
any way turn upon the exact figure of this initial quotation, and
for the purposes of this opinion, we will assume that $l06,707.35
was the correct figure.
-3-

balance of $44,769.25.
Cabrera

then

Engineering claimed
$80,000,

and

filed

that the contract

therefore,

$l9,273.86.

suit.

Sun

Sun

As

its

was for a total

Engineering

Engineering

defense,

also

only

claimed

Sun

price of

owed

Cabrera

that

Cabrera

negligently performed its work, and delayed the completion of the

Project.
After
entered

into an

contract,
work

trial, the district court found that the parties

informal

contract.

Cabrera was entitled

it had

performed

with

to be paid $105,495.39

on the

Project.

Cabrera was not responsible for

Engineering had only

In accordance

The court

any Project delays.

paid Cabrera $60,726.14, the

the

for the

found that

Because Sun

court entered

judgment in Cabrera's favor in the amount of $44,769.25.

Sun

Engineering

then

Engineering makes

three arguments

contends

by allowing

that 1)

filed

this

appeal.

on appeal.

a modification

Sun

Sun

Engineering

of the

pre-trial

order at trial, the district court permitted Cabrera to introduce

evidence

with

respect

to

contradicted a stipulated

the

at

trial

did

of

the

contract

fact, and changed Cabrera's

its case, in violation of Fed. R.

presented

cost

not

that

theory of

Civ. P. 16(e); 2) the evidence

support

the

district

court's

conclusion that valid change

3) the record does not
Cabrera

was

not

orders were issued to Cabrera;

and

support the district court's finding that

responsible

for

Project

delays.

Sun

Engineering's arguments are meritless.

-4-

II.
II.
In the final
that "the agreed
trial, Cabrera
$106,707.35

pre-trial order,

price on said

exhibit.

introduction of this

because

relevant to the

the

different price
The

and permitted
court

believed

objected to

be the terms of

argues that the

16(e)2 by effectively amending

for

the

the parties had

and that this

for the

court

Cabrera to
that

At

l989 quotation

Engineering

negotiations between the

parties intended to
Sun Engineering

Sun

stipulation.

Engineering's objection
exhibit

December 21,

was a contract for $80,000,

suggested a
that

parties stipulated

exhibit on the ground that

stipulated that there

evidence, which

the

subcontract was $80,000."

introduced its

as an

contradicted

THE RULE 16 CHALLENGE

THE RULE 16 CHALLENGE

the

contract,

overruled

Sun

introduce the
quotation

was

parties, and what

the

the contract.

On appeal,

court violated Fed. R.

the pre-trial order at

Civ. P.

trial and

permitting

Cabrera to

introduce evidence

which contradicted

stipulated fact, and which changed Cabrera's theory of its case.

A
integrity

trial court
and purpose

has broad
of the

pre-trial

Concord School Comm., 910 F.2d

_____________________
denied, 499 U.S. 912 (1991).
______

discretion

to preserve

order.

Roland M.
_________

983, 999 (lst Cir.

the

v.

l990), cert.
_____

An appellate court should exercise

____________________
2
Federal Rule of
part:

Civil Procedure l6(e) provides

in pertinent

[A pre-trial order] shall control the

subsequent course of the action unless
modified by a subsequent order.
The
order
following
a
final
pretrial
conference shall be modified only to
prevent manifest injustice.
-5-

minimal interference

with a

trial court's

interpretation of

pre-trial order and a court's decision to permit the introduction

of evidence, or

exclude evidence, based on

See Ram rez Pomales

___ _______________
3 (1st Cir.

that interpretation.

v. Becton Dickinson & Co., S.A., 839 F.2d 1,

____________________________

l988); Geremia v.
_______

First Nat'l Bank of Boston,

___________________________

653

F.2d 1, 5 (lst Cir. l981); 6

&

Charles A. Wright, Arthur R. Miller

Mary K. Kane, Federal Practice & Procedure

_____________________________

(1990).

"Unless

there is

1527, at 279-286

manifest injustice

or the

district

court has abused its discretion to the point of being arbitrary,"

the

court's ruling

will not

be disturbed.

Nickerson
_________

v. G.D.
____

Searle & Co., 900 F.2d 412, 422 (lst Cir. l990); Ram rez Pomales,
____________
_______________
839 F.2d at 3.

Federal Rule of Civil Procedure l6 provides that at the

final pre-trial
plan

conference the

for trial.

the action

controls the subsequent course of the

unless modified by a subsequent order.

l6(d),(e); Ram rez Pomales, 839 F.2d at 3.

_______________
pre-trial order is the

After the pre-

order shall be entered reciting

taken, and this order then

shall formulate

Ram rez Pomales, 839 F.2d at 3.

_______________

trial conference, an

action,

participants

Fed. R. Civ. P.

The interpretation of

responsibility of the

trial court.

trial court should construe the pre-trial order liberally so that

it

covers any

might be

of the

embraced by

possible legal
its

language.

or factual
Geremia,
_______

theories that
653 F.2d

at

(quoting Rodr gues v. Ripley Indus., Inc., 507 F.2d 782, 787 (lst
_________
___________________
Cir. l974) (citing
Procedure
_________

6 C. Wright

& A. Miller, Federal Practice &

___________________

l527, at 609 & n.47 (l971))).

-6-

Contrary to Sun
court

did not

amend the

reviewed the pre-trial

Engineering's contention, the district

pre-trial

order.

of

introduction

After

of

the

stipulation in the
also set out

theory

of the

entitled

to

performed.

Sun

Engineering

exhibit, the

court

the exhibit by
case.

be

paid

reviewed

The December

to

the

the factual

theory, which was

The court found

that the

Cabrera was consistent

with its

Pursuant to
on the

not an abuse

objected

context of Cabrera's legal

in the pre-trial order.

introduction of

proposed to introduce

The district court's actions were

discretion.

court

order, and based on its interpretation of

that order, found that the exhibit Cabrera

was admissible.

Rather, the

the

basis

of

contract, Cabrera
the

21, l989 quotation

change orders established the work

work it

was

actually

and the subsequent

that Cabrera was to perform.

While the factual stipulation did provide that the agreed cost of
the contract was
defy

logic to

$80,000, the court stated that

find that

Cabrera stipulated

price of the contract was $80,000, in

case.

Rather,

interpretation

the
of the

court

found

stipulation

it would simply

that the

absolute

light of its theory of the

that

the

was that

only

reasonable

it referred

to an

agreed "estimated"
within

contract cost

its discretion in

of $80,000.

The court

interpreting the stipulation

acted

and pre-

trial order in this manner, and we will not disturb its ruling.
III.
III.
Sun
regulations

THE CHANGE ORDERS

THE CHANGE ORDERS

Engineering
which

argues

purportedly

that

require

in

light

of

all

change

federal

orders

on

-7-

government

projects

insufficient

to

be

in

writing,

to support a finding that

the

evidence

was

valid change orders were

issued to Cabrera.
An

appellate

findings of fact

court

will

review a

district

in a bench trial for clear error.

court's

Dedham Water
____________

Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (lst
___
____________________________
l992); Fed. R. Civ.

P. 52(a).3

when

court is

the reviewing

conviction that a mistake has

972 F.2d at 457.
a court

A
left

finding is clearly
with the

been committed.

if certain facts

erroneous

definite and

firm

See Dedham Water,

___ ____________

Mixed questions of fact and law,

to determine

Cir.

possess, or

which require

lack, legal

significance in a given case,

Roland M., 910 F.2d at 990.
_________
a mistake

of law,

findings.

Id. at 990-91.
___
The

we

record

are also reviewed for clear error.

Absent a showing that the court made

will give

effect to

supports

the

findings that change orders were

and

Mr. Jim nez

testified

the trial's

district

court's

issued to Cabrera.

that

after

Cabrera

courts

factual

Mr. Cabrera

submitted

the

____________________
3
Federal Rule of
part:

Civil Procedure 52(a) provides

in pertinent

In all actions tried upon the facts

without a jury . . . the court shall find
the facts specially and state separately
its conclusions of
law thereon, and
judgment shall be entered pursuant to
Rule 58 . . . .
Findings of fact,
whether based on oral or documentary
evidence, shall not be set aside unless
clearly erroneous, and due regard shall
be given to the opportunity of the trial
court to judge of the credibility of
witnesses.
-8-

original

quotation to

proposed

to do, Mr. Jim nez requested

changes to the

Mr. Jim nez

quotation.

Mr.

detailing

the work

Cabrera

that Cabrera make certain

Cabrera also offered

undisputed

testimony

that after

the

contract,

Mr. Jim nez orally requested that Cabrera perform work

beyond that encompassed

underlays.

respect

in the

Mr. Jim nez

El as also

parties

entered

contract with

and Mr. El as

orally requested Cabrera

to

partitions,

into

that

the

original

respect to

both testified

to do additional

Mr. Jim nez

was

floor

that Mr.

work with

aware

of

this

request, and that Cabrera made those requested changes.

Cabrera claims that even if oral changes were issued to

Cabrera,

they

requirement,

were

of

however, that

government projects

the contrary,
requirement.4

Part

addresses

preparing

and
et
__

43

orders to

43.201 (1992)
of the

government

processing
seq.
____

change

There

48 C.F.R.

no

(1992).

Code

The

does not impose such a

of

policies

contract

contention to

Federal
and

procedures

modifications.
regulations

Regulations

48

43.201(a) (1992) provides in pertinent part:

Generally, Government contracts contain a
changes
clause
that
permits
the
contracting officer to make unilateral
changes, in designated areas, within the
general scope of the contract. These are
accomplished by issuing written change
orders on Standard Form 30, Amendment of
Solicitation/Modification
of
Contract
(SF 30), unless otherwise provided.
-9-

for

C.F.R.

are directed

____________________
4

is

subcontractors on

Despite Sun Engineering's

48 C.F.R.

generally

legal consequence.

be in writing and approved by the government

to be legally binding.

43.000

no

to

government contracting
directly

with them.

officers and
Section 43.20l

the procedures which the

follow

when issuing a

Generally, the
between

the

project.
such

as

regulatory

is specifically directed at

change order to

relationship covered
the prime

its contracting partner.

by the

We have

regulation is

contractor on

regulation does not apply to

subcontractors,

contractor.

contract

government's contracting officer should

officer and

The

those parties who

who contract

which

purports

a government

more remote parties,

solely

been unable to find any

requirement

that

to

with the

prime

other statutory or
control

the

prime

contractor's relationship with its subcontractors with respect to

the logistics of contract modifications, such as change orders.5
The

prime

contractor/subcontractor

relationship

governed by the terms of the contract between the parties.

e.g., United States for Control Systems, Inc. v.
____ ________________________________________
814 F.2d 193,

is

See,
___

Arundel Corp.,
_____________

196-97 (5th Cir.), modified on other grounds, 826

__________________________

F.2d 298 (5th Cir. 1987).

In the present case, the court

found

that the contractual dealings between Cabrera and Sun Engineering

were informal at best.
contract.

The parties never

Moreover, there was

no oral

signed a final written

or written

contractual

provision which required that any change orders issued to Cabrera

had to be in writing, or approved by the

contracting officer, in

____________________

5
In its brief, Sun Engineering points to the testimony of
Mr. El as and Mr. Delgado, an architect who worked for the Post
Office, who both stated that change orders were generally
accomplished through written directives.
Their testimony,
however, also referred to the relationship between the government
and the prime contractor.
-10-

order to

be

valid.

Therefore, the oral change orders at issue

were legally binding, and the district court properly

Cabrera was entitled
to

those orders.

to be paid for the

This

finding is

purpose of the Miller Act, 40 U.S.C.

found that

work performed pursuant

in accord with

the general

270a-f (1986), a remedial

statute, enacted to assure that all workers and subcontractors on

government projects received compensation for their efforts.
F.D. Rich Co.
_____________

See
___

v. United States for Use of Indus. Lumber Co., 417

__________________________________________

U.S. 116, 124 (l974).

IV.
IV.
Sun Engineering

DELAY CLAIM
DELAY CLAIM

contends

that

the

district

court's

finding that Cabrera

unsupported

by

was not responsible

the record.

We

disagree

evidence amply supports the court's

Delgado

and Mr. El as all

Cabrera completed

after the

and find

findings.

is

that

the

Mr. Cabrera,

Mr.

offered uncontradicted testimony that

all required work

evidence that Cabrera

for Project delays

on the Project.

There was

did correct some deficiencies

scheduled completion

date of the

in its work

Project.

With the

exception of the testimony of Mr. Jim nez, however, the record is

void of

any

financial
testified

penalty
that

delays which
conflicting

evidence

Sun

this "delay"

translated

Sun

Engineering.

While

to

Engineering was

were in fact
testimony to

solely responsible
credit Mr.

that

into

Mr.

any

Jim nez

financially

penalized for

caused by Cabrera, Mr.

El as offered

the effect

for the delays.

Jim nez' testimony.

that

Sun Engineering

The trial court

It was well within

was

refused to

the court's

-11-

discretion to determine whether or not it found Mr. Jim nez to be

a credible witness.

See Dedham Water Co., Inc., 972 F.2d at 461.

___ ______________________

There was no error in the court's findings.

V.

DOUBLE COSTS

V.
Because

DOUBLE COSTS

Sun Engineering filed

find it appropriate to assess

against it.
"[i]f

appeal, we

a monetary penalty of double costs

Federal Rule of Appellate Procedure 38 provides that

a court

of

frivolous, it may
to the

a frivolous

appeals

996

frivolous if

the

that

award just damages and single

appellee."

New Jersey,
__________

shall determine

an appeal

or double costs

Westcott Constr. Corp. v. Firemen's Fund of

_______________________
__________________
F.2d 14,
"result

"wholly without merit."

Id.
___

17 (lst

Cir. l993).

was obvious"

or

the

An appeal
arguments

success."

is

are

"[I]t is enough that the appellants

and their attorney should have been aware that the appeal
chance of

is

E.H. Ashley & Co.

__________________

v.

Servs., 907 F.2d 1274, 1280 (lst Cir. l990).

______
arguments on appeal are wholly without merit.

had no

Wells Fargo Alarm

__________________
Sun

Engineering's

There is no

legal

support for Sun Engineering's Fed. R. Civ. P. 16(e) challenge, or

its contention that change orders issued to Cabrera
writing to

be legally binding.

the

judge's factual

trial

reasonable

The record also

findings,

and there

had to be in

amply supports
are

simply no

grounds to challenge the sufficiency of the evidence.

We therefore award Cabrera double costs.

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