Bituminous Construction, Inc. v. Rucker Enterprises, Inc.

816 F.2d 965, 22 Fed. R. Serv. 1593
Court of Appeals for the Fourth Circuit·Decided April 21, 1987·No. No. 86-1156·Published·Cited by 4 cases

Opinion

ERVIN, Circuit Judge:

Defendant Rucker Enterprises, Inc. (“Rucker”) appeals from a judgment of the district court entered in favor of plaintiff Bituminous Construction, Inc. (“Bituminous”) in this case involving claims for breach of contract. Because we find no error in the proceedings below, we affirm the judgment of the district court.

Rucker was the owner of certain property in Maryland on which parking lots had been constructed. Rucker contracted with Claude B. Shaffer, through one of Shaffer’s companies, for Shaffer to resurface the parking lots.1 On or about November 11, 1982, Shaffer subcontracted with Bituminous for Bituminous to do most of the resurfacing work and provide the materials for the job. Bituminous sent a copy of its contract with Shaffer to Rucker on or about November 30, 1982.

Because Bituminous had never before worked with Shaffer and therefore did not know if Shaffer were a good credit risk, Bituminous asked Rucker to make checks in payment for the resurfacing project payable to Shaffer and Bituminous jointly. In a letter of November 23, 1982, Rucker agreed to Bituminous’s request, stating that “[c]hecks payable for bituminous materials used on the [resurfacing project] will be made payable to: Alexandria Maintenance Co. [a Shaffer company] and Bituminous Construction, Inc____”

Bituminous performed the resurfacing work on or about December 2,1982, and on December 8, it submitted a bill for its work in the amount of $18,261.70 to Shaffer. Shaffer refused to pay Bituminous because Shaffer had not been paid by Rucker. Shaffer later sued Rucker for payment, and Rucker settled the suit for $25,000. Rucker’s settlement check was made payable solely to Shaffer. Rucker apparently believed that Shaffer would pay the amount due Bituminous out of the $25,000 settlement, but Bituminous never received any money from Shaffer or Rucker.

Bituminous filed suit against Shaffer and Rucker, alleging claims for fraud and breach of contract. Rucker cross-claimed, seeking judgment against Shaffer in the amount of any judgment that might be entered against Rucker in favor of Bituminous.

The case proceeded to trial before the district judge, sitting without a jury. At the close of Bituminous’s case, the defendants moved for dismissal of all claims pursuant to Fed.R.Civ.P. 41(b). The district judge dismissed Bituminous's fraud claim, but trial of the breach of contract claim continued.

At the conclusion of the trial, the district court entered judgment in favor of Bituminous and against all of the defendants, jointly and severally, in the amount of $18,-261.70. Additionally, the district court awarded Bituminous prejudgment interest at the rate of ten percent from January 8, 1983, to the date of judgment. The court entered judgment for Rucker on its cross-[967] claim against Shaffer in the amount of $18,261.70.

Rucker’s primary contention on appeal is that the district court erred in declining to grant its motions to dismiss Bituminous’s breach of contract claim made at the close of Bituminous’s case and at the conclusion of all of the evidence. From our review of the record, we find no indication that Ruck-er moved to dismiss at the conclusion of all of the evidence. However, Rucker did move to dismiss at the close of Bituminous’s case, pursuant to Fed.R.Civ.P. 41(b). When the district court denied this motion with respect to Bituminous’s breach of contract claim, Rucker proceeded with the case and offered evidence in defense of Bituminous’s claim to the district court.

Under these circumstances, the district court’s denial of Rucker’s motion to dismiss the breach of contract claim is not subject to review on appeal. It is settled law that

[w]hen a Rule 41(b) motion is denied, the defendant has two alternatives: he can either proceed to present his evidence, or he can stand on his motion and bring an appeal. He cannot, however, do both. By presenting evidence, a defendant waives his right to appeal from the denial of his motion to dismiss; by appealing the motion to dismiss, he waives his right to present evidence should his appeal be denied.

duPont v. Southern National Bank, 771 F.2d 874, 881 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1467, 89 L.Ed.2d 723 (1986). As Professors Wright and Miller observe, “[t]he significance of this [rule] is that on appeal from a final judgment the court will look to all of the evidence and not merely that put in as part of the plaintiffs case.” 9 C. Wright & A. Miller, Federal Practice & Procedure § 2371, at 221 (1971). When a defendant has proceeded to offer evidence after the denial of a motion to dismiss under Rule 41(b), “the sufficiency of the evidence is tested on appeal by viewing the entire record, reversal being warranted only if the district court’s findings are clearly erroneous.” Duval v. Midwest Auto City, Inc., 578 F.2d 721, 724 (8th Cir.1978).

Accordingly, in this case, we look to the entire record developed below to determine whether there was sufficient evidence to support the judgment against Rucker. In our view, the evidence was sufficient, and the findings of the district court were not clearly erroneous.

There were two issues presented below that were relevant to a determination of Rucker’s liability: (1) Did Rucker assume responsibility to ensure that Bituminous was paid for the resurfacing project?; and (2) If so, for what amounts did Rucker assume responsibility? Rucker’s primary argument is that it did not agree to pay any amounts to Bituminous. Alternatively, Rucker contends that it agreed to pay Bituminous only amounts due for the materials Bituminous supplied for the resurfacing project, and not amounts due for Bituminous’s performance of the resurfacing work. The district court found that Ruck-er had assumed responsibility to ensure that Bituminous was paid the full price for its resurfacing work, including payment for labor and equipment, as well as materials. In our view, there was sufficient evidence to support this conclusion.

The joint check agreement set forth in Rucker’s letter of November 23, 1982, made clear that Rucker had agreed to issue checks payable jointly to Shaffer and Bituminous for at least some portion of the resurfacing project. Bituminous’s executive vice president, Richard Story, and Rucker’s senior commercial property manager, Charles Kolakoski, testified that Bituminous had requested the joint check agreement because Shaffer’s credit was doubtful. From this testimony and the joint check agreement itself, it was apparent that Rucker had assumed responsibility to make sure that Bituminous was paid for at least some portion of the resurfacing project; the purpose of the joint check agreement was to ensure that Bituminous could look to Rucker for payment, without being compelled to rely solely on Shaffer’s doubtful credit.

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Bituminous Construction, Inc. v. Rucker Enterprises, Inc., 816 F.2d 965, 22 Fed. R. Serv. 1593 (4th Cir. 1987).

816 F.2d 965 (Bituminous Construction, Inc. v. Rucker Enterprises, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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