Marriott Corporation, Plaintiff-Counter-Defendant-Appellee v. Dasta Construction Company, Defendant-Counter-Claimant-Appellant

26 F.3d 1057, 1994 U.S. App. LEXIS 18294, 1994 WL 320982

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 22, 1994
• Docket: 92-2981
• Status: Published

Opinions

TJOFLAT, Chief Judge:

This case arises out of the construction of a Marriott Corporation hotel in Orlando, Florida. Marriott, the appellee, acted as both the owner and general manager of the project. In that capacity, Marriott contracted with Dasta Construction Company, the appellant, to perform certain portions of the work. After the hotel was built, Marriott brought this suit in the district court to recover payments it had made on Dasta’s behalf to Dasta subcontractors and suppliers. Dasta counterclaimed, contending that Marriott not only had failed to carry out its contractual obligations, but also had interfered with Dasta’s performance. A jury found for Marriott on its claims and awarded Marriott the sums it had paid Dasta subcontractors and suppliers. On the counterclaim, the jury found for Dasta and awarded it $4,659,390.90. The district court subsequently granted Marriott’s motion for judgment notwithstanding the verdict, dismissing Das-ta’s counterclaim on the merits and limiting Marriott’s award to its costs of action. Dasta now appeals, seeking reinstatement of the jury’s verdict. Finding no merit in any of Dasta’s arguments, we affirm.

I.

In early 1982, Marriott began construction on an elaborate resort complex, or “mega hotel,” in Orlando, Florida.¹ The Marriott Orlando World Resort (“Resort”) was to contain fourteen different building segments, including a twenty-eight story guest tower; numerous convention rooms, restaurants, and ballrooms; and several outbuildings for swimming pools, golf courses, and tennis courts. Due to the size and complexity of Marriott’s undertaking — at the time of completion, the Resort was the largest building in terms of square footage in the state of Florida — construction was divided into several distinct projects requiring the coordination of numerous contractors and subcontractors.

Dasta became involved with the Resort in 1983, approximately one year after construction began. At that time, Dasta was one of the five largest building contractors in Kansas City, Missouri, specializing in all types of commercial and industrial construction and handling an average annual contract volume of between $20 and $30 million. Vincent Dasta, the company’s president and chairman of the board, possessed advanced degrees in civil engineering and business administration as well as more than twenty-five years of experience in the construction business.

Dasta first learned of the Marriott Resort project through William Hall, the owner of another Kansas City contracting company, Hall-Missouri. Although Dasta had never performed any work for Marriott,² Hall-Missouri had worked on three Marriott hotel construction projects and was familiar with Marriott’s building practices.³ Hall approached Dasta and suggested that the two contractors join forces to solicit work on the Resort. The combination was advantageous for both companies as Dasta possessed the size and experience to handle the large-scale Resort contracts, while Hall-Missouri offered a history of successful working relations with Marriott. In fact, it appeared doubtful that either company would have been capable of winning a contract for the Resort on its own.

On May 4, 1984, Marriott invited Dasta and Hall-Missouri to submit competitive bids for the exterior skin and drywall work on the Resort’s guest tower. The majority of the exterior skin work consisted of affixing layers of stucco, plaster, and water-proofing onto the cement block walls of the guest tower. The drywall work consisted of the application of drywall boards and finishing materials to the guest tower’s ceilings and inner walls. Case Concrete Contractors had already begun to construct the concrete walls that would provide the basis for the exterior skin at the time that Dasta and Hall-Missouri became involved in the Resort bidding process.

The bid invitation packages for the Resort’s exterior skin and drywall projects each contained a set of architectural drawings, a set of plans and specifications, and a list of general conditions that defined the nature of the potential relationship between Marriott and Dasta. The drawings and specifications included in the Resort bids were only between 50 and 80 percent complete,⁴ however, because the Resort was being built on a “fast track” basis. Under the fast track method, construction on a building begins before a final set of fully coordinated plans is completed. Rather, the architectural plans and specifications are designed and modified as the building’s actual construction progresses. The advantage of the fast track method, as opposed to building from plans completed at the outset, is that it enables construction to begin at a much earlier stage in the project. The method’s disadvantage results from increased difficulty in scheduling and coordinating the project since the construction progress schedule must be modified to account for constant plan changes. Notwithstanding these difficulties, however, Marriott had employed fast track construction in a number of prior, albeit smaller, hotel construction projects, including the three on which Hall-Missouri had been involved.

In May 1984, after reviewing the bid documents, Vincent Dasta and William Hall conducted pre-bid investigations of the project site in Orlando. During their visit, both men inspected the work in progress, reviewed the project paperwork, and engaged in “fairly lengthy discussion and specific discussion about the sequencing and scheduling of the work” to be done by Dasta. William Hall also participated in a critical series of special planning sessions hosted by Marriott. At these meetings, which lasted several days and which all of the contractors then working on the Resort attended, Marriott and the contractors engaged in detailed discussions about the current state of the Resort construction and the projected construction schedule. At the conclusion of these sessions, an outside planning consultant (who also attended the meetings) converted the information from the meetings into the Resort’s Critical Path Method (“CPM”).

According to the trial testimony of both Dasta and Marriott, a CPM is a standard construction device used to “plan the activities of a construction project in a logical orderly sequencing manner citing durations for the different activities from the beginning of the job to the end.” A CPM is created by dividing the entire project into discrete and quantifiable steps; in turn, each step is allotted an estimated time for completion. Ultimately, each step is arranged into a chronological sequence, thus revealing the anticipated length and structure of the entire construction schedule. In addition to serving as a roadmap for the contractors to determine when and where their work fits into the overall construction sequence, the CPM also assists contractors in assessing their hiring and material purchasing needs.

On June 1, 1984, Dasta and Hall-Missouri (hereinafter referred to jointly as “Dasta”) submitted bids under the Dasta moniker for both the exterior skin and drywall contracts. Dasta priced the exterior skin contract on enough “manpower to accomplish that work on an eight-hour day 40-hour basis and be done on time,” and submitted the successful low bid price. Dasta was awarded that contract, but failed to win the drywall contract.

Shortly after submitting its bids, Dasta received a copy of the CPM developed at the planning meetings. The CPM essentially restated the scheduling information that Dasta had received during the site visit; Dasta anticipated that the exterior skin work would commence in mid-July 1984 and continue in a logical fashion for fifteen months before concluding in September 1985. The CPM also stated that it was “for [Dasta’s] use in scheduling and determining crew sizes and work areas as per General Conditions of the Specifications item 6A [and 6]C, page 5.”⁵

According to Vincent Dasta, the company concluded that the CPM “was a good schedule and adequate to accomplish the exterior skin work in an efficient, production-type manner, working normal hours with optimum crew sizes.” On July 2,1984, Dasta formally contracted with Marriott to perform the exterior skin work for a lump sum price of $3,109,850. All of the documents from the original bid package — including the drawings, specifications, and general conditions— were incorporated into the final contract.

In mid-July, Dasta’s construction team arrived at the project site and learned that construction was operating at least five months behind schedule. The delay was caused by the “extremely poor quality” of Case’s concrete work, which contributed to a concrete collapse in the Resort’s tower area in mid-May. The defective concrete work was of particular concern to Dasta since much of its exterior skin work had to be placed directly onto Case’s concrete work, such that any problems with the concrete would translate directly into problems with the exterior skin. Although Dasta had planned “to be working full force” immediately upon arrival at the construction site, the defective concrete prevented it from doing so. Dasta related these concerns to Marriott, which in turn assured Dasta that Case was going to fix the defective work and that Dasta should not worry because Dasta was “not going to be responsible for [any other contractor’s problems].”

In addition to the faulty concrete, Dasta experienced a number of other difficulties and delays during the prosecution of its contractual obligations. First, Marriott’s fast track approach resulted in frequent and significant modifications to both the architectural plans and the progress schedule. These modifications prevented Dasta from proceeding in the orderly sequence that was anticipated by the original CPM, thereby causing Dasta to incur significant additional costs due to inefficiency and under-utilized labor. In total, Marriott issued hundreds of changes to the Resort’s drawings and progress schedule.⁶

Second, Marriott’s failure to provide adequate vertical transportation and safety measures placed Dasta further behind schedule. Naturally, Dasta’s performance on the upper tower areas depended upon its ability to get men and materials up to its work areas. Dasta’s efforts were hampered, however, by a shortage of elevators and hoists and by Marriott’s use of the lifts. When Dasta offered to bring, its own hoist onto the construction site to increase efficiency, Marriott refused to allow it. Dasta experienced similar delays due to Marriott’s belated erection of a safety net required by Occupational Safety and Health Act standards (to catch debris falling from work being done on the tower’s upper levels). Although the original progress schedule anticipated that Dasta would begin the tower work upon its arrival in July, Dasta was unable to begin until January 1985, when Marriott finally put up the net.

Despite these indications that performance of its contractual obligations might be more difficult than it originally believed, Dasta gradually undertook greater responsibility on the Resort project. In October 1984, after Case repeatedly failed to correct its faulty concrete work, Marriott and Dasta agreed that Dasta would perform' the repairs. Das-ta submitted unit prices for the repair work, and Dasta and Marriott drafted a written “Change of Contract” order to encompass the additional work. The procedure for handling the change of contract was provided for in the General Conditions of the original exterior skin contract.⁷- Dasta also accepted other work assignments from Marriott that were unrelated to Dasta’s base contract work and that resulted in more than twenty separate Changes of Contract, increasing Dasta’s total compensation by $3,255,591.75.

Moreover, in January 1985, roughly six months after Dasta began working at the Resort, Dasta submitted another competitive bid for the Resort’s non-tower drywall contract. Again, Dasta priced its bid on a logical and orderly “production-type manner, working normal hours;” on January 15, Marriott awarded the contract to Dasta for a lump sum price of $1,749,050. Although the drywall contract was a separate contract, its terms and conditions were identical to the exterior skin contract, and both parties treated the two contracts as one at all times.⁸

On January 23,1985, one week after Dasta entered into the drywall contract, Marriott hosted a second CPM session. At the meeting, Marriott proposed advancing the Resort completion date by three months, to April 1, 1986. Each contractor was represented at the meeting (including William Hall for Das-ta) and each contractor agreed to the acceleration.⁹ As a result, the new CPM was immediately put into effect, and Dasta continued to perform its contract work.

It eventually became clear, however, that Dasta was not up to the task.. In February 1986, as the Resort’s completion date drew near, cost overruns resulting from the delays in the Resort progress schedule caused Das-ta to run out of money. As a consequence, Dasta could no longer compensate its subcontractors and suppliers. Vincent Dasta met with Marriott on February 3 to discuss “the additional costs Dasta was incurring due to disruption, acceleration, overtime work, increased crew sizes, etc.” At that time, Marriott told Mr. Dasta that the important thing was to get the Resort completed in time and that afterwards Marriott would discuss a fair and reasonable settlement. According to Dasta, Marriott instructed Dasta to submit a formal “efficiency claim”¹⁰ for its additional costs. Dasta relied on Marriott’s assurances and borrowed more than $1.5 million in order to meet its contractual obligations.

Notwithstanding the additional borrowed funds, Dasta remained unable to pay all of its suppliers and subcontractors; accordingly, Marriott made several payments on behalf of Dasta. On February 28,1986, under Dasta’s direction, Marriott paid $292,000 directly to Dasta’s subcontractors and suppliers and subtracted an equal amount from the outstanding balance due Dasta on the contracts. Furthermore, on September 24, 1986, after Dasta had left the work site and the Resort was opened to the public, Marriott was forced to make additional payments to Dasta subcontractors and suppliers in order to discharge certain liens that they had recorded against the Resort. The suppliers and subcontractors filed the liens because Dasta had neglected to pay them for services rendered at the Resort.

At approximately the same time, Dasta presented the efficiency claim that Marriott had invited it to submit at the February 3 meeting. Dasta sought several million dollars as compensation for the additional costs it incurred in performing the contract work.¹¹

II.

Rather than negotiate or pay Dasta’s claim, Marriott filed this suit in the United States District Court for the Middle District of Florida. In its complaint, Marriott sought, first, indemnification from Dasta for the sums it had paid to satisfy the mechanics’ liens filed against the Resort by Dasta subcontractors and suppliers, and, second, a declaration that it was not liable for the amount of Dasta’s efficiency claim.

On November 4, 1986, Dasta answered Marriott’s complaint and filed a counterclaim for $3,933,502.20. In these pleadings, Dasta advanced several theories of law to support its position that it owed Marriott nothing for the sums Marriott had purportedly paid on Dasta’s behalf and that it was entitled to recover the damages sought. Among other things, Dasta alleged that (1) at the time Dasta bid the contracts, Marriott misrepresented both the progress of the overall construction and the terms and conditions of Dasta’s undertaking, misrepresentations that induced Dasta substantially to underbid the job; and (2) Marriott breached the contracts by unduly delaying Dasta’s performance.¹² At the pre-trial conference, the district court reduced Dasta’s numerous theories of recovery to a claim for breach of contract.

The case was tried to a jury. After eight days of trial, the jury found, by special verdict, that Marriott was entitled to recover the $369,402.02 it had paid Dasta suppliers and subcontractors and that Dasta was entitled to recover $2,452,311.00, the unpaid balance due on the contracts, and $2,207,079.90,’ the damages Dasta suffered by reason of Marriott’s deliberate interference with Dasta’s performance of the contracts, along with accumulated interest.

Marriott thereafter moved for either judgment n.o.v.¹³ or, in the alternative, a new trial. The court gave Marriott judgment, set aside the jury’s verdict for Dasta, and awarded Marriott the sum of $369,402.02. In an opinion accompanying its ruling, the court observed that there was no evidence that Marriott had committed the contractual breaches Dasta had alleged or that Marriott had interfered, in violation of its contractual duty to the contrary, with Dasta’s performance of the contract work.

III.

Dasta asks us to reinstate the jury’s verdict and to direct the district court to enter judgment in conformance therewith, or, alternatively, to order a new trial. According to Dasta, the district court properly submitted its breach of contract claim to the jury; the court erred, however, when it held, on motion for judgment n.o.v., that the contract documents precluded Dasta’s recovery. Whether the contracts precluded Dasta’s claims for the additional and unanticipated expenses it incurred in performing the work is a pure question of law, to be answered by examining the language of the contracts themselves.¹⁴ Zaklama v. Mount Sinai Medical Ctr., 906 F.2d 650, 652 (11th Cir.1990). Whether Marriott fraudulently or negligently misrepresented the progress of the overall construction of the Resort or the terms and conditions of Dasta’s undertaking, however, are questions of fact, to be answered by examining the evidence adduced at trial in the light most favorable to Dasta. See, e.g., Norton v. Snapper Power Equip., 806 F.2d 1545, 1548 (11th Cir.1987).

Our analysis of the contract documents in this case leads us to the inescapable conclusion that Dasta has no claim, under those documents, for the injuries it purportedly suffered at the hands of Marriott. Our analysis of the evidence leads us to the identical conclusion: Dasta has no claim under any of the theories of recovery it advances.

A.

The Resort, although not an unique undertaking for Marriott, represented one of Marriott’s largest and most ambitious construction projects. Inherent in the scale and complexity of the project was the potential for delay in the various phases of its construction. This potential was enhanced by Marriott’s use of the fast track construction method, such that construction began with neither a final set of plans and specifications nor a firm progress schedule or completion date. Presumably, contractors involved with the Resort project made provision for the risks presented by such contingencies in two ways: first, by setting their bid prices high enough to absorb the “additional costs” they might incur in performing the work (including the costs Dasta seeks to recover in this case); and, second, by negotiating contract terms and conditions designed to minimize such costs. In the present case, the parties thoroughly addressed and allocated the risks of delay inherent in the Resort project.

In the General Condition entitled PROGRESS SCHEDULE, which the parties incorporated into their contracts, Marriott “specifically reserve[d] the right to modify the progress schedule as required by conditions of the work,” while Dasta, for its part, “agree[d] to comply with the progress schedule established by the Owner, or any revision thereof.” General Condition 6A.¹⁵ Further, General Condition 6C provided that:

[sjhould the Contractor fail to comply with the progress schedule, or in the Owner’s opinion, otherwise fail, refuse or neglect to supply a sufficient amount of labor or material in the prosecution of the Work, Owner shall have the right to (1) direct Contractor to furnish such additional labor and/or materials as may, in the Owner’s opinion, be required to comply with the progress schedule or otherwise diligently prosecute the work, or (2) furnish such additional labor and/or materials as may be required to comply with said schedule. Any costs incurred by Owner pursuant to the exercise of its rights under this paragraph shall be borne by the Contractor and shall not increase the Contract Sum.

(Emphasis added.) In addition to the foregoing, Article III, section 3.1 of both the exterior skin and the drywall contracts, entitled TIME OF COMMENCEMENT AND COMPLETION, reiterated Marriott’s right to modify the progress schedule:

TIME IS OF THE ESSENCE OF THIS AGREEMENT. The Owner may sustain financial loss if the project or any part thereof is delayed because the Contractor fails to perform any part of the work in accordance with the contract documents, including, without limitation, a failure to comply with the schedule for this project, or any revision thereof, established by Owner. The Contractor shall begin the work at the time directed by the Owner and perform its obligations under this agreement with diligence and sufficient manpower to maintain the progress of the work as scheduled by Owner, without delaying other contractors or areas of work. At the request of the Owner, the Contractor shall perform certain parts of the work before other parts, add extra manpower, or order overtime labor in order to comply with the schedule (or any revision thereof), all without any increase in the contract sum.

(Emphasis added.) Finally, in Article III, section 3.2, Dasta certified that “the required materials and manpower [would be] available to prosecute the work in accordance with such schedule.” In short, Marriott had complete discretion to adjust the schedule as well as to demand that Dasta comply with such adjustments without additionally compensating Dasta.

In arriving at its bid prices, Dasta had the opportunity to account for Marriott’s broad powers, as well as to compensate itself for the risk of delay, by increasing its prices fairly to reflect the risks it was assuming. Article V, section 5.2, addressing the Contract Sum, specifically advised Dasta that its price should include “all increases in costs, foreseen or unforeseen, including ... labor and materials” and that “[a]ll loss or damage arising from any of the work through unforeseen or unusual obstructions, difficulties or delays which may be encountered in prosecution of the work, or through the action of the elements shall be borne by Contractor.” Under this pricing arrangement, known as lump sum pricing, Dasta bore the risks associated with underestimating its price or failing to account for unexpected additional costs.¹⁶ At the same time, however, Dasta would reap all of the benefits of any cost savings, in the event that the Resort was completed at an earlier date, or in a more efficient manner, than originally anticipated.

Dasta was familiar with this form of contract pricing. Dasta was also aware of both the potential for delay in this project and the fact that it would not be entitled to demand additional compensation for delay from Marriott upon completion. Despite this knowledge, Dasta priced its contracts under the unrealistic expectation that there would be no modifications to the progress schedule and that the work would be prosecuted, according to Vincent Dasta, “in an efficient production-type manner, working normal hours with optimum crew sizes.”

Notwithstanding that Dasta, in formulating its bid prices, failed to protect itself from the delays occasioned here, it still protected itself, in the contracts, against unforeseen delays beyond its control, including those caused by the “act or neglect” of Marriott or Marriott’s subcontractors or from “changes ordered in the scope of the work.” A provision in the contracts, known as a “no damage for delay” clause, gave Dasta the specific right to seek an extension of its time for performance in the event of delay; Dasta, as consideration for this right, agreed not to seek damages for such delay. The no damage for delay clause, located in General Condition Item 7A, states as follows:

If the Contractor is delayed at any time in the progress of the Work by any act or neglect of Owner or by any contractor employed by Owner, or by changes ordered in the scope of the Work, or by fire, adverse weather conditions not reasonably anticipated, or any other causes beyond the control of the Contractor, then the required completion date or duration set forth in the progress schedule shall be extended by the amount of time that the Contractor shall have been delayed thereby. However, to the fullest extent permitted by law, Owner and Marriott Corporation and their agents and employees shall not be held responsible for any loss or damage sustained by Contractor, or additional costs incurred by Contractor, through delay caused by Owner or Marriott Corporation, or their agents or employees, or any other Contractor or Subcontractor, or by abnormal weather conditions, or by any other cause, and Contractor agrees that the sole right and remedy therefor shall be an extension of time.¹⁷

In order to receive an extension of time, however, Dasta was obliged to present Marriott with a legitimate request for an extension of time.¹⁸ In addition to the no damage for delay clause located in General Condition Item 7A, the contracts between Marriott and Dasta contained an independent clause, General Condition Item 7B, that required Dasta to submit a written request detailing the cause and length of the delay, as well as the length of the requested extension.¹⁹ The condition also required that the request be submitted within seven days of the commencement of the delay.

The utility of a written request, or its functional equivalent, is that it would have provided Marriott with a meaningful opportunity to evaluate the legitimacy of Dasta’s claim, and to determine whether Dasta’s request should be honored or rejected. This notice requirement was particularly important because Dasta was only entitled to recover damages if Marriott’s refusal to grant a time extension was wrongful. See Pertun, 918 F.2d at 919-20 (refusing to enforce no damage for delay clause where owner prevented request for extension by wrongful and premature termination of contract).

Finally, assuming arguendo, that Dasta made a legitimate request for an extension of time, as required under the contracts in this case, and that Marriott subsequently refused to grant the extension, Florida law would not permit the no damage for delay clause to bar Dasta’s recovery if the delays were occasioned by Marriott’s fraud, concealment, or active interference with Das-ta’s performance under the contract. Seminole, 828 F.2d at 675; see also Southern Gulf, 238 So.2d at 459 (no damage for delay clause ineffective where delay is knowing and sufficiently egregious); McIntire v. Green-Tree Communities, Inc., 318 So.2d 197, 199-200 (Fla. 2d Dist.Ct.App.1975) (delay clause ineffective where “circumstances which caused the delay were brought about by [owner] and were even foreseen but concealed by [owner] when the contract was made”). These exceptions to the no damage for delay clause are premised upon an “implied promise and obligation not to hinder or impede performance.” Newberry Square Dev. Corp. v. Southern Landmark, Inc., 578 So.2d 750, 752 (Fla. 1st Dist.Ct.App.1991).

Thus, under the terms of the contracts, Marriott had absolute authority to modify the construction schedule, while Dasta was obligated to abide by Marriott’s instructions. Although these terms may seem one-sided, Dasta was aware of these provisions at the time it bid the contracts, and had the opportunity to increase its proposed contract prices to account for the risks it would be assuming. Dasta failed to seize upon this opportunity, and, in hindsight, made a pair of improvident bargains from which we are powerless to grant relief. It is not the function of the courts to “rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain.” Steiner v. Physicians Protective Trust Fund, 388 So.2d 1064, 1066 (Fla. 3d Dist.Ct.App.1980) (quoting Beach Resort Hotel Corp. v. Wieder, 79 So.2d 659, 663 (Fla.1955)).

B.

It is unnecessary to determine whether Marriott actively interfered with Dasta’s performance, because Dasta waived the application of the no damage for delay clause by failing to make a proper request for an extension of time as required by the contracts.²⁰ At trial, Vincent Dasta testified, on direct examination, as follows:

Q: Now Mr. Dasta, at any time in the course of this job did you personally submit a written request to Marriott for an extension of time?

A: No, only verbal.

Q: To your knowledge, did Bill Hall [Das-ta’s project executive] or Ed Matthews [Dasta’s project manager] submit a written request for an extension of time?

A: They may have. I don’t have direct knowledge of it.

Q: Do you recall ever seeing [a] written request for an extension of time?

A: I may have recalled seeing one, yes, but I can’t tell you when I saw it or when it was written. But, I may have.

Obviously, this testimony was insufficient to demonstrate that Dasta presented Marriott with a written request for an extension of time.²¹ Moreover, none of Dasta’s verbal communications to Marriott was sufficient to constitute the functional equivalent of a written request for an extension of time. Vincent Dasta testified that he and other Dasta employees “made numerous verbal comments, notices, however you want to call them or portray them” that Dasta was being delayed by the conditions of the job. The exchanges referred to by Dasta, however, amounted to little more than grumblings and complaints by Dasta that were met with generalized assurances from Marriott that Dasta would not be held responsible for any delays. In these exchanges, Dasta did not identify, with any degree of particularity, the cause or the length of any of its alleged delays. As such, these comments and notices by Dasta were legally insufficient to activate the protection of the no damage for delay clause.²²

Dasta argues that it never requested an extension because Marriott had indicated that “no extensions of time were to be given on this job.” Despite the knowledge that Marriott had adopted a position that was wrongful under the conduct, Dasta failed to take any affirmative steps toward enforcing its legitimate contractual right to request an extension. Instead, Dasta decided to accept Marriott’s generalized statements because, according to Vincent Dasta, it “relied on another portion of the contract which specifically states that there is a trust and confidence relationship between parties and that ... both parties have to have mutual trust and confidence in each other.”

We are not persuaded by Dasta’s explanation.²³ In the face of a clear contractual provision directly addressing its right to relief in the given situation,²⁴ Dasta, in light of its sophistication and experience, simply was not permitted to rely on general notions of good faith and mutual fair dealing. Moreover, there is no indication that Marriott’s actions were wrongful or in bad faith. Although Dasta might have been entitled to an extension of time if it was in fact delayed by Marriott’s actions, Marriott had a contractual right to engage in the course of conduct it pursued. Despite Dasta’s complaints to the contrary, the exercise of a legitimate contractual right simply does not amount to a wrongful act.²⁵ This fact, along with Dasta’s failure to request any extensions of time, is fatal to Dasta’s claim for damages due to delay, “impact,” and “inefficiency.”²⁶ In short, the contracts defined the only remedy available to Dasta, and Dasta failed to pursue that remedy.

IV.

The final issue for our determination concerns Dasta’s claim of entitlement to the outstanding amounts on its contracts with Marriott. Although the jury found that “the amount of the unpaid contract balance that Dasta is entitled to recover” is $2,452,311.00, the parties agree that the actual amount owed Dasta on the contracts totals $509,-358.49. Also undisputed is the fact that Das-ta expressly authorized Marriott to reduce the amount owed under the contracts to reflect the $292,000 in payments that Marriott made directly to Dasta subcontractors and suppliers. Thus, both parties agree that the final amount left owing Dasta on the contracts totals $217,358.49.²⁷

In addition to the $292,000 in payments credited by Dasta, however, Marriott demonstrated at trial that it paid an additional $278,114.28²⁸ directly to Dasta subeontrae-tors and suppliers in order to extinguish liens placed on the Resort after Dasta failed to compensate them for their work on the project. Marriott asserts, and the district court found, that this amount should be applied as a set-off to the outstanding contract balances owed to Dasta. We agree.

According to General Condition Item 25, Dasta agreed not to permit its subcontractors and suppliers to place any liens on the Resort property. Moreover, “in the event that any such hen shall be filed, [Dasta] agrees to take all steps necessary and proper for the release and discharge of such hen ... and in default of performing such obhgation, agrees to reimburse the Owner, on demand, for all monies paid by Owner in releasing, satisfying, and discharging of such hens.”

Accordingly, Dasta was obhgated bo remove ah mechanics’ hens placed on the Resort by its supphers and subcontractors. Dasta failed to abide by this provision, and because the additional amounts paid by Marriott exceed the outstanding balances owed Dasta, Marriott is entitled to set-off the entire remaining amount of the outstanding contract balances.²⁹

V.

Dasta’s failure to comply with the contractually-provided measures for rehef bars Das-ta from recovering for its delay, impact, and inefficiency damages. Dasta also cannot recover its outstanding contract balances because those amounts wére offset by payments made by Marriott on Dasta’s behalf. Accordingly, the district court’s grant of judgment notwithstanding the verdict is AFFIRMED.

IT IS SO ORDERED.

1 . Because we are reviewing the grant of judgment n.o.v., we consider the evidence, and state the facts in this part of the opinion, in the light most favorable to Dasta.

2 . Dasta had submitted a bid for work on an earlier, unrelated Marriott project, but it did not secure the contract for that work.

3 . Hall-Missouri performed drywall contracting work on a number of similar, albeit smaller, Marriott hotel construction projects in Virginia, Colorado, and Missouri.

4 .Although the drawings were incomplete, they nonetheless indicated that they had been “issued] for construction." The drawings also indicated on their face when and how numerous revisions had been made.

5 . The relevant portion of the referenced General Conditions provided as follows:

6. Progress Schedule

A. The Contractor agrees to comply with the progress schedule established by the Owner, or any revision thereof, and agrees that the Work shall be prosecuted regularly, diligently and uninterrupted, within the time specified. Owner specifically reserves the right to modify the progress schedule as required by the conditions of work.

C. Should the Contractor fail to comply with the progress schedule or, in the Owner's opinion, otherwise fail, refuse or neglect to supply sufficient labor and/or material in the prosecution of the Work, Owner shall have the right to (1) direct Contractor to furnish such additional labor and/or material as may, in the Owner's opinion, be required to comply with the progress schedule or otherwise diligently prosecute the Work.... Any costs incurred by Owner pursuant to the exercise of its rights under this paragraph shall be borne by the Contractor and shall not increase the Contract Sum.

6 . The changes to the plans and the progress schedule originated from two sources. First, many of the changes were issued directly by the full-time architectural and engineering staff that Marriott employed on the job site. Second, additional changes were- based on input cultivated from daily reports and weekly progress meetings that were attended by each Resort contractor.

7 . The provision provided, in relevant part, as follows:

17. CHANGES IN WORK

A. The Owner ... may order changes in the work within the general scope of the contract consisting of additions, deletions or other revisions, the contract sum being adjusted as applicable. All such changes in the work shall be authorized by a change of contract....

B. A Change of Contract is a written order to the Contractor signed by the Owner ..., issued after the execution of the contract, authorizing a change in the work or an adjustment of the contract sum or the time of performance ....

C.In making any change, the charge or credit for the change of contract will be determined as follows:

A request for a proposal shall be issued in writing to the Contractor by the owner. The Contractor shall, within 7 working days of the receipt of such request, submit a proposal for the requested change to the Owner. The proposal shall contain a quantity survey including quantity calculations, area calculations, unit prices, labor hours, rates and any other information necessary to provide the owner, in the Owner's opinion, with a comprehensive understanding of the proposal....

If the contractor believed that Marriott was requiring it to perform extra work without a change order, the contract permitted the contractor to initiate a change order, provided that the contractor submit its proposed change order to Marriott “within seven (7) days [of Marriott’s order for the extra work], complete with detailed labor and material costs.”

8 . Dasta suffered delays on the drywall contract similar to those it experienced on the exterior skin contract. Although the drywall work could be prosecuted only under "water tight and temperature controlled” conditions, such conditions were not in place until several months after Dasta was originally scheduled to begin the drywall work.

9 . At trial, Vincent Dasta denied that everyone at the meeting agreed to the acceleration. Vincent Dasta, however, did not attend the meeting; accordingly, his testimony on this point lacked probative value and was simply self-serving hearsay. Those who attended the meeting and testified at the trial denied the existence of any opposition to the acceleration.

10 .Marriott denies that it instructed Dasta to submit a claim for its additional costs. Because we are reviewing the propriety of the district court’s entry of judgment n.o.v., we disregard Marriott's denial and accept, as true, Dasta's version of the events. In the proceedings below, and on appeal, Dasta labeled its claim for the additional costs it incurred on account of delay as an “efficiency claim.” As discussed in the text infra, this claim includes the costs associated with condensing Dasta’s time of performance, e.g., increased costs due to additional manpower and overtime pay. In this opinion, when we discuss Dasta's efficiency claim, we refer to this formulation of the claim.

11 .A letter written by the outside consultant that Dasta hired to prepare its efficiency claim, included in Dasta's claim to Marriott, stated as follows:

Our analysis shows that Dasta experienced disruptions, interferences, etc. on the [Resort] project. The compensable damages in this regard are as follows:

1. Labor Inefficiencies 1,069,168.44

2. Extended Equipment Costs 60,032.15

3. Outstanding Change Orders 377,787.60

4. Extended Jobsite Overhead 85,069.14

5. Extended Home Office Overhead 79,996.45

6. Interest on Borrowed Monies 268,796.00

7. Legal/Accounting Expenses 210,460.00

TOTAL AMOUNT $ 2,151,309.78

12 .Dasta’s counterclaim contained nine counts. Reduced to their essentials, these counts claimed, collectively, that Dasta was entitled to recover money damages from Marriott for the unnecessary and unanticipated expenses it incurred in prosecuting its work because Marriott fraudulently, or, in the alternative, negligently, misrepresented the condition and status of the Resort project; Marriott's plans and specifications, which it "impliedly warranted," were inaccurate; Marriott negligently supervised the work; and Marriott made oral assurances to Dasta (thus modifying the terms of the written contracts), while the work was in progress, that it would reimburse Dasta for such expenses when the project was completed. Finally, Dasta claimed, in the alternative, that Marriott was liable to it for the additional expenses Dasta incurred under the theory of quantum meruit,

13 . At trial, Marriott moved for a directed verdict at the close of all the evidence. The district court withheld its ruling on the motion pending the return of the jury’s verdict.

14 . There is no claim in this case that we must look beyond the contract documents to determine the rights and obligations of the parties. Nor is it contended that one or more contract provisions are ambiguous and thus subject to parol evidence to discern the parties’ intent. Our analysis therefore is limited solely to an examination of the contract documents.

15 . See, supra note 5. As stated earlier, the general conditions were part of the exterior skin bid package, such that Dasta was aware of these conditions prior to submitting its exterior skin bid price. Moreover, in the Critical Path Method that Dasta received after submitting its exterior skin bid, but before formally contracting to perform the work, Marriott specifically cautioned Dasta that the use of the CPM “in scheduling and determining crew sizes and work areas” was expressly subject to the "General Conditions of the Specifications item 6A, 6B, 6C, page 5.”

16 . Dasta argues that it was not aware of the risks associated with the Resort project because Marriott fraudulently and negligently misrepresented or concealed material aspects of the Resort construction. According to Dasta, Marriott misrepresented the fact that the Resort was a fast track project by issuing plans that stated they were "issue[d] for construction,” when in actuality they were old and incomplete. Additionally, Dasta cites Marriott's failure to reveal that Case’s concrete work was severely deficient and several months behind. Had Marriott revealed these facts, Dasta argues, it would have accounted for them by increasing its bid price.

Dasta’s argument is unavailing. There is no indication in the record that Marriott restricted Dasta's freedom to investigate the Resort project or that Marriott failed to reveal any information that it was obligated to disclose to Dasta. After Dasta received the documents containing the alleged misrepresentations, Dasta conducted a thorough on-site investigation of the project and engaged in lengthy discussions with both Marriott personnel and other contractors already working on the Resort. Dasta also attended the CPM meetings at which the Resort's progress schedule was developed. Finally, the uncontra-dicted evidence at trial indicated that William Hall was aware that Marriott employed the fast track method in its hotel construction projects. Accordingly, Dasta’s claims of fraud and misrepresentation have no basis in fact.

In a related argument, Dasta claims that it is entitled to recover its damages under a theory of implied warranty based on Marriott's misrepresentations that the Resort plans and specifications were complete and issued for construction. This claim likewise finds no support in the record, is plainly inconsistent with Dasta’s awareness that Marriott employed a fast track mode of hotel construction, and is therefore rejected.

17 . Under Florida law, no damage for delay clauses are valid, enforceable, and not in violation of public policy. Southern Gulf Util., Inc. v. Boca Ciega Sanitary Dist., 238 So.2d 458, 459 (Fla. 2d Dist.Ct.App.1970); C.A. Davis, Inc. v. City of Miami, 400 So.2d 536 (Fla. 3d Dist.Ct. App.1981). See also United States f/u/b/o Pertun Constr. Co. v. Harvesters Group, Inc., 918 F.2d 915, 919 (11th Cir.1990); United States f/u/b/o Seminole Sheet Metal Co. v. SCI, Inc., 828 F.2d 671, 675 (11th Cir.1987) (“Seminole”).

18 . Although Dasta argues, based on this Court's holding in Pertun, that Marriott was obligated to issue Dasta an extension of time even in the absence of a request by Dasta, we disagree, finding that Pertun is plainly distinguishable on its facts. In Pertun, the requirement of a written demand for an extension was obviated by the fact that the Owner terminated the contract before the contractor had the opportunity to make the request. Additionally, the no damage for delay clause in Pertun, unlike the one here, did not expressly condition the grant of a time extension upon the submission of a written request. Rather, the clause in Pertun simply stated that in the event of delay, the "time fixed for completion ... shall be extended " for the appropriate time. Id. at 919 (emphasis added). As such, Pertun cannot be relied on for the proposition cited by Dasta here.

19 .General Condition 7B states as follows:

Any claim for extension of time shall be made in writing by the Contractor to Owner, for approval by Owner, within seven (7) days after commencement of the delay. Contractor’s failure to give such written notice to Owner shall deprive the Contractor of his right to claim an extension of time and any damages or additional costs incurred by Contractor resulting from such delay. In the case of a continuing cause of delay, only one claim shall be necessary. The giving of such notice shall not of itself establish the validity of the cause of delay or of the extension of time for completion.

20 . Relying upon a series of Florida cases holding that no damage for delay clauses "do[] not preclude recovery for delays resulting from a party’s fraud, concealment, or active interference with performance under the contract,” post, at 1072, the dissent would hold that Marriott's active interference invalidated the entire contract provision governing delays, including the provision requiring Dasta to request an extension of time for delay. It is true that, despite the no damage for delay clause in the contract, Dasta would be able to recover damages under Florida law if Marriott deliberately interfered with Dasta’s performance. See e.g., Seminole, 828 F.2d at 675; C.A. Davis, 400 So.2d at 538; McIntire, 318 So.2d at 199-200. The delay provision in this case, however, provided for more than just immunity from money damages. Rather, in addition to the no damage for delay clause contained in General Condition Item 7A, the delay provision in this case, unlike those in each of the Florida cases relied upon by the dissent, conditioned remedies for delay upon Dasta's first making a legitimate request for an extension of time. See General Condition 7B.

Thus, it is our view, as explained infra, that Dasta is not entitled to recover for its delay damages because it failed to comply with the independent notice requirement, not because the clause exempting Marriott from money damages is enforceable. The dissent failed to account for the additional clause, which required Dasta to submit a prompt and detailed written request for an extension of time before Marriott’s delay-inducing conduct would become actionable.

Moreover, as a practical matter, the dissent's approach is untenable because it would frustrate the bargained-for agreement of the parties. Rather than encouraging Dasta to mitigate its damages by providing Marriott with the early opportunity to address the problems alleged by Dasta, the dissent's approach would have encouraged Dasta to remain silent about the delays and sue at a later time — an effect that clearly was never intended by the parties.

21 . In presenting its evidence at trial, Dasta introduced no document that could have served as such a request.

22 . Dasta, in a separate theory of recovery, asserts that the generalized assurances that it received from Marriott constituted oral modifications to the written contracts. For two reasons, we reject Dasta's claim. Initially, the statements upon which Dasta relies were legally insufficient to create a binding agreement either by oral modification of a written contract or by estoppel. Cf. Professional Ins. Corp. v. Cahill, 90 So.2d 916, 918 (Fla.1956) (refusing to permit oral modification of a written contract except where an oral agreement has been "accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it”); W.R. Grace & Co. v. Geodata Services, Inc., 547 So.2d 919, 925 (Fla.1989) (quoting Geodata Services, Inc. v. W.R. Grace & Co., 526 So.2d 922, 930 (Fla. 2d Dist.Ct.App.1988) (Campbell, J., dissenting)) (rejecting estoppel argument because "mere expectations based upon oral representations regarding future rights of parties to a contract specific in its written terms [is] insufficient to support a cause of action”) (citations omitted). Second, even if Marriott's statements were sufficient to modify the contracts, Dasta's claim nonetheless would fail for want of consideration. See City of Miami Beach v. Fryd Constr. Corp., 264 So.2d 13, 15 (Fla. 3d Dist.Ct.App.1972).

23 . We are similarly unpersuaded by Dasta's claim that, in light of Marriott’s unequivocal statements refusing to grant any extension, Dasta was released from its duty to request a time extension as a matter of law because such an act would have been futile. Compare Craddock v. Greenhut Constr. Co., 423 F.2d 111, 115 (5th Cir.1970). Dasta, however, cannot demonstrate that a request for an extension of time would have been futile, because Dasta presented no evidence that Marriott ever refused a validly made request. As the district court aptly noted, "[a] failure to ask for or to seek an extension does not give rise to a claim for damages for failure to grant [one].”

24 . The presence of express contractual provisions directly addressing Dasta's claims, including the no damage for delay clause, forecloses Dasta from recovering on its quantum meruit claim. See Harding Realty, Inc. v. Turnberry Towers Corp., 436 So.2d 983, 984 (Fla. 3d Dist. Ct.App.1983) (recognizing settled rule of Florida law that quantum meruit is inappropriate where a valid express contract exists).

25 . Moreover, the fact that Marriott was entitled, under the contracts, to engage in the type of conduct challenged by Dasta also is fatal to Das-ta’s claim of negligent supervision.

26 . In a final attempt to circumvent the application of the no damage for delay clause, Dasta claims that the clause is inapplicable in the instant case because Dasta's damages are for "inefficiency of labor” and "impact” costs, rather than "delay” costs. According to Dasta, there can be no delay damages "unless there is a prolongation of performance beyond the anticipated date of completion.” Paul Hardeman, Inc. v. United States, 406 F.2d 1357, 1361, 186 Ct.Cl. 743 (1969). Since Dasta completed its performance on time, it reasons that there were no delay damages and that the no damage for delay clause cannot be a bar to its recovery.

We disagree. As a preliminary matter, Harde-man plainly is distinguishable because it addressed a situation in which the complained-of costs would exist regardless of whether a delay occurred; here, on the other hand, Dasta’s damages were due to the delay and, hence, are precisely of the type addressed by the no damage for delay clause. In its own brief, Dasta states that it was delayed due to Marriott’s actions and that these delays, by impacting upon Dasta’s time of performance, caused the labor inefficiencies that are the subject of Dasta's claim. We are unmoved by Dasta's creative attempt to label its way around the no damage for delay clause,

27 . At trial, Dasta presented the following as the final accounting of its contracts with Marriott:

A. VC-109 Exterior Skin:

Original Contract $3,109,850.00

Plus Adjustments (Change of Contract 1-19) 3,086,342.16

Less Payments (5,791,214.65)

(Direct to Dasta)

Subtotal A $404,977.51

B. VC-125 P.S. Drywall:

Original Contract $1,749,050.00

Plus Adjustments (Change of Contract 20-22) 169,249.59

LESS:

Payments (1,813,918.61)

Subtotal B 104,380.98

Subtotal A & B 509,358.49

LESS

Authorized Payment by Marriott to Dasta Subcontractors and Suppliers (292,000.00)

TOTAL $217,358.49

28 . Dasta and Marriott agree that Marriott paid $570,114.28 either to Dasta suppliers and subcontractors or to satisfy the various liens placed on the Resort; they disagree, however, on the percentage of this amount that was "authorized” by Dasta. Because Marriott is credited for all payments, authorized or otherwise, the distinction is immaterial.

29 . $278,114.28 (unpaid liens) - $217,358.49 (outstanding balances on contracts) = $60,-755.79. Because Marriott did not take a cross-appeal on its claim against Dasta from the judgment entered by the district court, under which Marriott was not entitled to recover the amount it paid in excess of the contract balance, we need not determine whether Marriott, in fact, could have recovered the additional $60,755.79 from Dasta.