Searching over 5,500,000 cases.

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.

One Call Locators, Ltd. v. Centurytel Service Group, LLC

United States District Court, D. Colorado

December 5, 2017

ONE CALL LOCATORS, LTD, d/b/a ELM Locating & Utility Services, Plaintiff,
CENTURYTEL SERVICE GROUP, LLC, d/b/a CenturyLink, Inc., Defendant.



         This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment (Doc. # 41) and Defendant's Motion for Partial Summary Judgment (Doc. # 42). For the reasons discussed below, the Court denies both motions.

         I. BACKGROUND

         Defendant, CenturyTel Service Group LLC, d/b/a CenturyLink (CenturyLink), provides communication and data services to residential, business, governmental, and wholesale customers. (Doc. # 41 at 3.) When CenturyLink installs, repairs, and replaces its underground facilities, it must often excavate the ground. (Id.) Plaintiff, One Call Locators, Ltd, d/b/a/ ELM Locating & Utility Services (ELM), is in the business of locating underground facilities before excavation. (Id.)

         In 2009, ELM and CenturyLink entered into a Local and Worldwide Construction Agreement (2009 Agreement), wherein ELM contracted to perform various services for CenturyLink in Arizona, Iowa, Idaho, Minnesota, Montana, Nebraska, North Dakota, and South Dakota. (Doc. ## 41 at 3; 41-2, 41-3.) The 2009 Agreement expired in March 2013 and was not renewed. (Doc. # 41 at 3-4.) In February 2013, ELM and CenturyLink entered into another Local and Worldwide Construction Agreement (2013 Agreement), wherein ELM again contracted to perform various services for CenturyLink, now in Arizona, Iowa, Montana, and North Dakota. (Doc. ## 41 at 4; 41-1; 41-2.)

         The 2013 Agreement, which is the subject of this lawsuit, included a provision that permitted CenturyLink to withhold funds otherwise due to ELM for defective work.[1](Doc. ## 1 at ¶¶ 11-13; 41-2 at 4.) In other words, if ELM caused damages, ELM was generally responsible for paying for them. (Doc. # 1 at ¶¶ 13-14.) ELM claims that CenturyLink has improperly withheld funds for damages not contemplated by the 2013 Agreement and not, therefore, ELM's responsibility. As a result, ELM commenced this lawsuit, bringing two causes of action: (1) breach of contract, and (2) declaratory relief. (Id. at 4-5.) In response, CenturyLink denies virtually all allegations in the Complaint and argues that ELM owes CenturyLink in excess of $3.5 million as reimbursement and indemnification for damages that ELM caused. (Doc. # 16 at 1-6, ¶ 10.) CenturyLink also brings Counterclaims for (1) breach of contract; (2) promissory estoppel; (3) unjust enrichment; and (4) common law indemnification. (Id. at 8-11.)


         Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it is essential to the proper disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, Okl., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing motions for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id. However, conclusory statements based merely on conjecture, speculation, or subjective belief do not constitute competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).


         ELM's motion centers on its allegation that CenturyLink has been improperly withholding funds for damages that pre-date the 2013 Agreement based on the parties' 2009 Agreement, which ELM argues, was superseded and voided by virtue of an merger clause in the 2013 Agreement. ELM specifically references fifty-seven damage claims totaling $1, 567, 775.91 that occurred between September 2008 and February 2013 and that, it claims, have been improperly withheld under the 2013 Agreement. CenturyLink responds that the merger clause in the 2013 Agreement did not supersede or void the 2009 Agreement, and thus, the damages under it remain owing.

         The Court agrees with CenturyLink that the merger clause did not void ELM's obligations under the 2009 Agreement. Under New York law[2], written agreements are construed in accordance with the parties' intent and “[t]he best evidence of what parties to a written agreement intend is what they say in their writing.” Greenfield v. Philles Records, 98 N.Y.2d 562, 569 (2002) (internal quotation marks and citation omitted). As such, “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.” Id. Where a contract contains a merger clause, a court is obliged “to require full application of the parol evidence rule in order to bar the introduction of extrinsic evidence to vary or contradict the terms of the writing.” Schron v. Troutman Sanders LLP, 20 N.Y.3d 430, 436 (2013) (quoting Primex Intl. Corp. v. Wal-Mart Stores, 89 N.Y.2d 594, 599 (1997)).

         Moreover, a subsequent contract not pertaining to “precisely the same subject matter” will not supersede an earlier contract unless the subsequent contract has definitive language indicating it revokes, cancels, or supersedes that specific prior contract. CreditSights, Inc. v. Ciasullo, No. 05 CV 9345 (DAB), 2007 WL 943352, at *6 (S.D.N.Y. Mar. 29, 2007) (quoting Globe Food Services Corp. v. Consolidated Edison Co. of New York, Inc., 184 A .D.2d 278 (1st Dep't 1992) (holding that a later contract containing the phrase “this contract shall replace all prior agreements” not sufficiently definitive to supersede a particular earlier contract).

         The general merger clause in the parties' 2013 Agreement is “complete, clear, and unambiguous.” It provides, in pertinent part,

Entire Agreement. The Contract Documents contain the entire understanding between the parties with respect to the subject matter and supersede all prior oral and written understandings, arrangements and agreements ...

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.