D. PETERSON District Judge.
breach of contract case between plaintiff CTI Systems, S.A.
and defendant Global Finishing Solutions, LLC went to trial
in February 2016. The parties’ dispute arises out of a
failure in the HVAC system for an environmental room (EV
room) that Global Finishing constructed for CTI. The primary
issue was whether, under the parties’ contract, Global
Finishing was responsible for that failure. A jury found in
Global Finishing’s favor, concluding that it did not
breach the parties’ contract.
post-trial motions are before the court. First, Global
Finishing moves for its costs and attorney fees, pursuant to
Federal Rules of Civil Procedure 54 and 68. Dkt. 118. The
court will grant this motion in part and award Global
Finishing some of its costs, but not its attorney fees.
Second, CTI moves for judgment as a matter of law or,
alternatively, for a new trial, pursuant to Rules 50 and 59.
Dkt. 122. The court will deny this motion.
evidence at trial substantially confirmed the facts that the
court recounted in it its summary judgment decision. Dkt. 59.
Corporation-not a party to this suit-hired CTI to construct a
paint workshop in Hesston, Kansas. Part of the project
required building an EV room in which to prepare metal parts
for a powder coating process. CTI contracted this aspect of
the project out to Global Finishing, a company with expertise
in EV room installations.
case is about the HVAC system that Global Finishing selected
for the EV room; specifically, the air handling units, which
overheated and stopped working sometime after Global
Finishing installed them. Global Finishing’s initial
plan was to place these units on the roof of the AGCO
facility that CTI was constructing. CTI rejected this
proposal, indicating that it wanted the air handling units to
be installed inside the facility (but outside the EV room).
CTI’s plan was to use the heat that the air handling
units generated to help cure the finish on parts in other
locations at the facility. Global Finishing warned CTI that
this plan would create a lot of heat. But CTI insisted on a
design that had the air handling units inside the facility,
and so Global Finishing submitted a quote for such a design.
parties incorporated a technical specification for the EV
room into their contract. CTI (or AGCO) would provide a power
supply point, water, and a drain; Global Finishing would
supply all other equipment and installation materials. The
contract also contained two provisions that are pertinent to
this case. The first provision required the HVAC system to be
installed outside the EV room but inside the facility:
Dkt. 8-2, § 3. The second pertinent provision described
the environmental conditions in which the EV room would
5. Process/Environmental Parameter
Heat loads to be considered
• Powder booth grey 275.000 BTU/hour
• Powder booth black 275.000 BTU/hour
• Powder booth multicolor 350.000 BTU/hour
• 3 ware loads at the time
Velocity Load: 0, 1-4 m/min
Weight Load: 2200 pounds per ware load
Surface: 300 sqft, p
Approx. Temperature Metal entering Room: Temperature
• heat load of 2 operators in the booth
• heat load of lighting
• heat load because of the room design (wall, doors,
Climatic condition outside the EV Room
Temperature Inside: min. 55°F [m]ax. 110°F
Humidity: min. 20% max. 99.7%
Id. § 5.
Global Finishing’s project team started designing and
constructing the EV room, one of its project managers
expressed concerns to CTI about the heat that the air
handing units would generate. On at least two different
occasions, the project manager warned that the heat buildup
could cause issues if CTI or AGCO did not provide
appropriate ventilation and keep the temperatures around
the air handling units at or below 110°F. CTI did not
take steps to address these concerns.
Finishing delivered the completed EV room, and CTI paid for
it in full. But the EV room began experiencing problems
shortly after AGCO started using it. The problems were with
the air handling units, and they were due to poor
ventilation and high ambient temperatures. CTI asked Global
Finishing to fix the problem, but Global Finishing refused
to do so without compensation. CTI undertook the repair
itself, eventually installing air handling units outside
the facility, at a cost of $394, 320.91. When Global
Finishing refused to reimburse CTI for these expenses, CTI
filed suit in this court alleging state law claims for
breach of contract and breach of warranty.
court denied CTI’s motion for summary judgment, and
the case proceeded to trial. A jury concluded that Global
Finishing did not breach its contract with CTI. The court
entered judgment in favor of Global Finishing on March 3,
sides have filed post-trial motions: CTI seeks judgment as
a matter of law or a new trial, Dkt. 122, and Global
Finishing seeks its fees and costs, Dkt. 118.
CTI’s motion for judgment as a matter of law
the close of Global Finishing’s case, CTI moved for a
directed verdict, pursuant to Rule 50(a). Tr. 3p, at
7:10. The court deferred ruling on the motion,
id. at 9:9-16, and CTI now renews it, pursuant to
Rule 50(b). Dkt. 122. CTI presents two arguments in support
of its motion, neither of which is persuasive. The court
will therefore deny CTI’s motion.
CTI contends that the court incorrectly concluded at
summary judgment that the parties’ contract was
ambiguous. According to CTI, the contract unambiguously
required Global Finishing to design a system that would
work within the specified environmental parameters, and so
the court should have enforced the contract as written and
entered judgment in CTI’s favor. CTI rehashes some of
its rejected summary judgment arguments and asserts that
“[w]ith the benefit of the trial testimony, the Court
should review and revise its finding of ambiguity.”
Id. at 3. But these arguments did not entitle CTI
to summary judgment before trial, and they do not now
entitle CTI to judgment as a matter of law after trial.
Wisconsin law, “[a] contract provision is ambiguous
if it is fairly susceptible of more than one
construction.” Ash Park, LLC v. Alexander &
Bishop, Ltd., 2015 WI 65, ¶ 36, 363 Wis.2d 699,
866 N.W.2d 679 (internal citations and quotation marks
omitted). At summary judgment, the court concluded that the
parties’ contract did not specify who was to maintain
the ambient temperatures around the air handling units.
Dkt. 59, at 13-14. Thus, the ambiguity was whether Global
Finishing merely had to design an EV room that would work
in temperatures at or below 110℉, or whether it had
to design an EV room that would work in those temperatures
and not increase them. Contrary to CTI’s
contention, either construction would be reasonable. The
evidence at trial does not require the court to revisit its
earlier conclusion that the contract is ambiguous, and CTI
is not entitled to judgment as a matter of law on this
CTI argues that even if the contract is ambiguous, the
evidence at trial did not support the jury’s verdict.
This is a tall order. “In deciding a Rule 50 motion,
the court construes the evidence strictly in favor of the
party who prevailed before the jury and examines the
evidence only to determine whether the jury’s verdict
could reasonably be based on that evidence.”
Passananti v. Cook County, 689 F.3d 655, 659 (7th
Cir. 2012). The court reviews the entire record but does
not reweigh the evidence, make credibility determinations,
or consider evidence favorable to the moving party that the
jury was not required to believe. Id. Thus, CTI
would be entitled to judgment as a matter of law only if
the jury did not have a “legally sufficient
evidentiary basis” to find in Global
Finishing’s favor. Id.; Fed.R.Civ.P.
to CTI, the evidence at trial established that Global
Finishing breached the parties’ contract by: (1)
failing to design a system that would function properly
within the range of temperatures listed in the
specification; and (2) failing to follow various
manufacturer instructions and professional codes when it
installed the air handling units. Dkt. 122, at 3-5.
the first alleged breach, the jury’s primary job in
this case was to determine what the parties’ contract
required of Global Finishing. Based on the verdict, the
jury concluded that the parties meant for Global Finishing
to design a system that would function in temperatures
between 550F and 1100F. Evidence at
trial confirmed that the air handling units initially
worked after Global Finishing installed them in early 2013,
when temperatures were within the specified range. See,
e.g., Tr. 2p, at 104. When the units failed, however,
ambient temperatures were well above 1100F.
jury was entitled to credit the evidence at trial
establishing that the parties intended for CTI to handle
issues with ambient heat or circulation. For example,
during the planning stages of the project, Global Finishing
personnel repeatedly expressed concerns to CTI about
mounting the air handling units indoors, explaining that
they could malfunction if CTI or ACGO did not have a plan
to ensure proper ventilation and temperature regulation.
See, e.g., Def.’s Ex. 521, 522, 528, 530.
And Ludwig DeWald, CTI’s branch manager, signed a
sworn declaration confirming that during a planning meeting
with Global Finishing personnel, he indicated that CTI
would be responsible for keeping the temperature in the
ACGO facility under 110℉. Def.’s Ex. 569. This
evidence provided a sufficient basis for the jury’s
conclusion that Global Finishing did not breach the
parties’ contract with regard to the EV room that it
for the more “technical” breaches, CTI contends
that Global Finishing failed to comply with manufacturer
instructions and professional codes when installing the air
handling units that it chose for the project. For example,
the units’ instructions required that they have at
least six feet of clearance on all sides. Yet Global
Finishing installed the units less than six feet from the
ceiling of the AGCO facility. And the units themselves were
labeled for outdoor use only, which Global Finishing did
not disclose to CTI.
theory of the case was that Global Finishing could have
selected indoor units or at least found other outdoor units
to install without violating the manufacturer’s
installation instructions. But Global Finishing argued to
the jury that CTI was aware of the potential heat issues,
agreed to account for them, and wanted to redirect that
heat to other areas in the facility. Evidence at trial
supported these arguments, and the jury was entitled to
accept them. For example, Global Finishing’s early
quotes to CTI included plans to mount the air handling
units on the roof of the AGCO facility. Def.’s Ex.
565. At CTI’s insistence, however, Global Finishing
revised these quotes to provide that the air handling units
would be on top of the EV room but inside the facility.
Def.’s Ex. 566. And CTI persisted with its plan, even
after Global Finishing personnel warned of the dangers of
putting the units inside. Def.’s Ex. 521, 522. This
evidence supported the jury’s conclusion that Global
Finishing did not breach the “technical”
aspects of the parties’ contract.
has not demonstrated that the jury’s verdict lacked a
“legally sufficient evidentiary basis.” The
court will deny CTI’s motion for judgment as a matter
CTI’s motion for a new trial
alternative to judgment as a matter of law, CTI moves for a
new trial, pursuant to Rule 59. “A court may only
order a new trial if the jury’s verdict is against
the manifest weight of the evidence, or if for other
reasons the trial was not fair to the moving party.”
Willis v. Lepine, 687 F.3d 826, 836 (7th Cir.
2012) (citations, internal quotation marks, and alterations
omitted). CTI presents two independent grounds for a new
trial, neither of which is persuasive.
CTI contends that the jury did not answer special verdict
questions about causation and damages (the other elements
of CTI’s breach of contract claim), and about the
issue of waiver (Global Finishing’s affirmative
defense). If the court were to conclude that no
reasonable jury could have failed to find that Global
Finishing breached the parties’ contract (i.e., if
the court were to grant CTI’s Rule 50(b) motion),
then a new trial would be necessary to address these
questions. But as explained above, there was sufficient
evidence to support the jury’s conclusion that Global
Finishing did not breach the parties’ contract. Thus,
there is no need for a new trial on any other elements or
affirmative defenses because the jury’s verdict
disposed of CTI’s breach of contract claim.
CTI argues that the court erred in refusing to allow lay
opinion testimony from two of its witnesses: Larry Priddy
and Doug Bare. Before trial, CTI argued that these
witnesses should be allowed to offer “opinions based
on [their] observations and work experience, but not on
scientific or specialized expertise.” Dkt. 99, at 2.
Yet much of the testimony that CTI attempted to present
consisted of opinions based on specialized or scientific
knowledge. See, e.g., id. at 3-4. In
other words, it was expert testimony, not lay opinion
testimony. And because CTI did not disclose Priddy or Bare
as experts, the court precluded these witnesses from
offering expert testimony at trial.
maintains that the excluded testimony from both witnesses
was admissible as lay opinion testimony and that the
court’s evidentiary rulings were incorrect and
prejudicial. But CTI misunderstands the type of lay opinion
testimony that the Federal Rules of Evidence authorize.
Some courts permit lay witnesses to testify to opinions
that “are based on a combination of their personal
observations of the incident in question and background
information they acquired through earlier personal
observations.” 4 Jack B. Weinstein & Margaret A.
Berger, Weinstein’s Federal Evidence, §
701.03 (2d ed. 2016). Examples of such testimony would
include a business owner who opines on the value of his
company or a homeowner who opinions on the value of her
house. Id.; see also United States v.
Conn, 297 F.3d 548, 554 n.2 (7th Cir. 2002).
CTI wanted to stretch this principle to allow Priddy and
Bare to offer opinions about the air handling units based
on their observations and work experience. Specifically,
Priddy and Bare would have testified that installing the
units indoors was improper, that the space between the
units and the ceiling was insufficient, and that the
installation had to be corrected. Dkt. 122, at 8. These
were expert opinions based on specialized or technical
knowledge; they were not lay opinions. Excluding them was
consistent with Seventh Circuit precedent. See,
e.g., Compania Administradora de Recuperacion de
Activos Administradora de Fondos de Inversion Sociedad
Anonima v. Titan Int’l, Inc., 533 F.3d 555, 561
(7th Cir. 2008) (“Testimony based solely on a
person’s special training or experience is properly
classified as expert testimony, and therefore it is not
admissible under Rule 701. . . . Taylor’s valuation
attempt was based on his special experience in the tire
industry, not on his personal knowledge of the goods in
question; therefore, it falls within the purview of Rule
702.” (citations omitted)); Conn, 297 F.3d
at 554-55 (“Agent McCart’s testimony was not
based only on his observations; rather, the testimony was
based on his accumulated expertise obtained through
experience and training. He was asked to draw upon his
accumulated knowledge and to provide information to the
jury about the appropriate characterization of Mr.
Conn’s firearms. . . . Testimony of this nature is
expert testimony.”). CTI has not demonstrated that
the court’s evidentiary rulings regarding Priddy and
Bare were incorrect. This is reason enough to deny
CTI’s motion for a new trial.
if the court had erroneously precluded Priddy and Bare from
offering expert testimony, CTI would still not be entitled
to a new trial. “A new trial is warranted only if the
[decision to exclude evidence] has a substantial and
injurious effect or influence on the determination of a
jury and the result is inconsistent with substantial
justice.” Lewis v. City of Chi. Police
Dep’t, 590 F.3d 427, 440 (7th Cir. 2009). CTI
contends that excluding Priddy and Bare’s opinion
testimony was prejudicial because these witnesses were
“neutral, knowledgeable observers and inspectors of
the project failure as a matter of fact, each of their
observations was highly probative, beyond even similar
observations by CTI witnesses or CTI’s retained
expert.” Dkt. 122, at 8.
evidence established the “lay opinions” that
Priddy and Bare would have offered. There was no dispute
that Global Finishing installed outdoor-only units inside,
that the units were less than six feet from the ceiling,
and that CTI ultimately had to fix the problem by
installing different units. A lack of evidence on these
points is not what led the jury to find in Global
Finishing’s favor. More likely, it was the testimony
from CTI’s own employee (and others), who confirmed
that: (1) Global Finishing expressly warned CTI about the
dangers of installing air handling units indoors; (2) CTI
pursued the idea anyway because it wanted to use the heat
elsewhere in the AGCO facility; and (3) CTI indicated that
it would manage the temperatures around the EV room. If
anything, the excluded testimony was simply cumulative
evidence that would have supported a theory that the jury
ultimately rejected for other reasons. CTI has not
demonstrated that the court’s evidentiary rulings
warrant a new trial.
Global Finishing’s motion for costs and attorney
Finishing prevailed at trial and now seeks its costs and
attorney fees, pursuant to Rules 54(d) and 68(d). Dkt. 118.
But Global Finishing is entitled to only some of the costs
that it has identified, and it is not entitled to any
attorney fees. The court will therefore grant Global
Finishing’s motion only in part.
Finishing seeks $12, 952.04 in costs. Id. ¶
9; Dkt. 119-3. CTI first objects generally to any award of
costs because Global Finishing did not demonstrate that its
costs were necessary. “Any party seeking an award of
costs carries the burden of showing that the requested
costs were necessarily incurred and reasonable.”
Trs. of Chi. Plastering Inst. Pension Tr. v. Cork
Plastering Co., 570 F.3d 890, 906 (7th Cir. 2009).
Global Finishing’s counsel’s conclusory
declaration that the submitted spreadsheet accurately
reflects the costs that his client incurred, Dkt. 119,
¶¶ 4, 6, is a poor method for satisfying this
requirement. But after reviewing Global Finishing’s
submissions, the court is persuaded that its identified
costs were necessarily incurred in defending this case.
for CTI’s objections to some of Global
Finishing’s specific costs, the court agrees that
they are not recoverable. Global Finishing seeks $5, 035.45
in costs for legal research. But “computer research
costs are more akin to awards under attorney’s fees
provisions than under costs. . . . In fact such costs are
indeed to be considered attorney’s ...