Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wellons, Inc. v. Eagle Valley Clean Energy, LLC

United States District Court, D. Colorado

September 29, 2017

WELLONS, INC., an Oregon corporation, Plaintiff,
v.
EAGLE VALLEY CLEAN ENERGY, LLC, a Utah limited liability company, EVERGREEN CLEAN ENERGY CORPORATION, a Colorado corporation, CLEARWATER VENTURES, LLC, a Utah limited liability company, DEAN L. ROSTROM, individually, KENDRIC B. WAIT, individually, WESTERN RESOURCES, LLC, a Utah limited liability company, COLORADO FORESTRY FUNDING, LLC, a Delaware limited liability company, and WEST RANGE FOREST PRODUCTS, LLC, a Colorado limited liability company, Defendants. EAGLE VALLEY CLEAN ENERGY, LLC, EVERGREEN CLEAN ENERGY CORPORATION, and CLEARWATER VENTURES, LLC, Counterclaimants,
v.
WELLONS, INC., Counterclaim defendant. EAGLE VALLEY CLEAN ENERGY, LLC, EVERGREEN CLEAN ENERGY CORPORATION, and CLEARWATER VENTURES, LLC, Third-party plaintiffs,
v.
WELLONS GROUP, INC., and MARTIN NYE, Third-party defendants. GCUBE INSURANCE SERVICES, INC., a California corporation, Plaintiff,
v.
WELLONS, INC., an Oregon corporation, Defendant.

          ORDER ON MOTION FOR NEW TRIAL

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE

         On June 5, 2007 the jury rendered its verdicts in case no. 15-cv-1252-RBJ in favor of the plaintiff, Wellons, Inc., on separate counts of breach of contract against defendants Eagle Valley Clean Energy, LLC and Evergreen Clean Energy Corporation. Specifically, the jury found that Eagle Valley had breached a construction contract called the EPC Contract, and it awarded damages to Wellons in the amount of $10, 840, 000. This was the unpaid portion of the contract price and was a stipulated number. The jury found that Evergreen Clean Energy had breached its obligations under a subordinated promissory note, and it awarded damages to Wellons of the same $10, 840, 000. The jury found in favor of the two defendants (and entities related to them) on plaintiff's fraudulent transfer claims. Finally, the jury found against Eagle Valley on its two counterclaims, one asserting breach of the EPC Contract by Wellons, and the other asserting negligence by Wellons. See ECF Nos. 367 and 368 (unredacted), 369 and 370 (redacted).

         The Court entered its Final Judgment on July 24, 2017. ECF No. 382. On August 21, 2017 Eagle Valley and Evergreen Clean Energy filed a motion asking the Court to grant Eagle Valley a new trial on its breach of contract counterclaim against plaintiff Wellons. ECF No. 408. Before plaintiff responded the same defendants filed a notice of appeal. ECF No. 413. On September 7, 2017 an Order was issued by the Clerk of the United States Court of Appeals for the Tenth Circuit stating that the appeal would be abated until the district court disposes of the motion for a new trial. ECF No. 425.[1]

         In the motion for new trial defendants argue that (1) the verdict was against the weight of the evidence, and (2) the verdict was precipitated by several prejudicial errors by the Court. I address those arguments in turn.

         A. Weight of the Evidence.

         In the EPC Contract Wellons agreed to construct a biomass electricity generation plant in Gypsum, Colorado in exchange for an agreed price. Wellons built the plant, but Eagle Valley refused to pay $10, 840, 000 which was the remaining unpaid portion of the contract price. The jury found that Eagle Valley, not Wellons, breached the contract and awarded damages to Wellons in the amount of $10, 840, 000. Accordingly, while the pending motion seeks a new trial on Eagle Valley's counterclaim for breach of the EPC Contract, it presumably would require a new trial as well on Wellons' breach of contract claim against Eagle Valley under the same contract.

         Defendants argue that the verdict was “overwhelmingly” against the weight of the evidence. ECF No 408 at 4-6. I disagree. First, contrary to defendants' argument that there was no evidence that Wellons achieved substantial completion, there was substantial, albeit disputed, evidence that “Final Completion” (a condition of defendants' obtaining certain financing, which they did obtain) was achieved. Wellons acknowledged that there were various relatively small tasks, which Wellons called “punch list” items, remaining to be done. But there was evidence that defendants interfered with Wellons' ability to complete those items, including by excluding Wellons from the site. As Wellons points out in its response, not only was there evidence that final completion was achieved, but there was evidence that Wellons delivered a plant that functions well and produces more electricity than was promised. See ECF No. 427 at 3-4.[2]

         Defendants identify a list of specifics where, they contend, Wellons breached the EPC Contract:

. the boiler's failure to achieve a 900 degree operating temperature, which defendants attribute at least in part to the installation of an undersized boiler system pipe
. “CEMA” is the prevailing industry standard for fuel conveyer design and construction, but Wellons did not meet that standard
. Wellons did not “resolve” eight punch list items ECF No. 408 at 2-4.
I agree that defendants presented evidence concerning alleged deficiencies. But as pointed out in Wellons response, defendants' evidence was not the only evidence on these items. For example,
. Wellons presented evidence that Eagle Valley's use of inappropriate fuel, i.e., fuel containing high moisture or ash, was the likely cause of the difficulty in achieving the 900 degree boiler temperature
. Wellons presented evidence that CEMA is not a building code but a guideline which Wellons uses when it is appropriate for ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.