Opinion
FBTCV176064929S
01-24-2019
VIKING CONSTRUCTION, INC. v. TMP CONSTRUCTION GROUP, LLC
UNPUBLISHED OPINION
File Date: January 25, 2019
MEMORANDUM OF DECISION ON DEFENDANT TMP CONSTRUCTION GROUP, LLC’S MOTION FOR JUDGMENT OF DISMISSAL AND MOTION TO SET ASIDE THE VERDICT ON PLAINTIFF VIKING CONSTRUCTION, INC.’S COMPLAINT AND PLAINTIFF VIKING’S MOTION FOR SANCTIONS
STEWART, J.
The defendant, TMP Construction Group, LLC (TMP), filed motions in the alternative as to the jury verdict on the plaintiff, Viking Construction, Inc. (Viking)’s, breach of contract claim in count one of the second amended complaint. TMP moves first for a judgment of dismissal on the grounds that there is no justiciable controversy on that claim and moves in the alternative that the verdict should be set aside and judgment should enter for TMP on the grounds that the contract as a matter of law precluded the jury from awarding relief to Viking on that claim.
I. TMP’S MOTION FOR JUDGMENT OF DISMISSAL
TMP moves for a judgment of dismissal, contending that the court does not have subject matter jurisdiction over Viking’s breach of contract claim because there is no justiciable controversy. Specifically, TMP argues that there is no justiciable controversy because there is no practical relief for Viking on that claim.
Once subject matter has been raised, this court must determine whether it has jurisdiction "before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102, 1109 (2003). Subject matter jurisdiction "is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Rayhall v. Akim Co., Inc., 263 Conn. 328, 339, 819 A.2d 803, 811 (2003). Subject matter jurisdiction can be raised at any stage of the proceedings, including on appeal. Reinke v. Sing, 328 Conn. 376, 382, 179 A.3d 769, 772 (2018). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotations omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60, 67 (2013).
Subject matter jurisdiction requires that there be a justiciable controversy. Milford Power Co., LLC v. Alstrom Power, Inc., 263 Conn. 616, 623-25, 822 A.2d 196, 200-01 (2003). "Justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudicate a particular matter ... Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant." (Citation omitted; internal quotation marks omitted.) Mendillo v. Tinley, Renehan & Dost, LLP, 329 Conn. 515, 523, 187 A.3d 1154, 1159-60 (2018).
At oral argument, TMP contends that Viking’s breach of contract claim is not justiciable because there can be no practical relief. As the court understands TMP’s argument, the only way Viking can recover more than the balance to bill that it retained from paying TMP under the contract is if Viking had terminated TMP under § 11.2 of the contract between them. TMP further argues that because Viking did not terminate under § 11.2, Viking cannot recover anything above and beyond the amount it retained from TMP. TMP concludes on the basis of this interpretation that because there is no practical relief for Viking, there is therefore no justiciability and no subject matter jurisdiction.
When a court holds that there is no practical relief, the typical reason is that the issue is moot. See, e.g., Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 366-67, 957 A.2d 821, 826 (2008). Indeed, "[t]he test for determining mootness is not [w]hether the [plaintiff] would ultimately be granted relief ... The test, instead, is whether there is any practical relief this court can grant the [plaintiff]." (Internal quotation marks omitted.) Glastonbury v. Metropolitan District Commission, 328 Conn. 326, 336, 179 A.3d 201, 207 (2018). "[W]hile practical relief may be difficult to articulate or implement, if there is any practical relief available, then the court may exercise jurisdiction." Id., 208, 179 A.3d at 208.
Here, the jury returned a verdict in favor of Viking on the breach of contract claim and awarded damages of $ 45, 373.88, which is the total of what Viking paid for two other vendors to repair allegedly defective work pertained by TMP. See Plaintiff’s Ex. 115. Notably, the jury did not award Viking its claimed "excess costs to complete" of $ 339, 706.34, which is the amount in excess of the $ 350, 685.66 balance to bill that Viking paid another vendor who came in to finish the job after TMP no longer was working on the project. Plaintiff’s Ex. 115.
As set forth in detail below, in the present case, TMP has not established that Viking had no practical relief available to it under any provision of the contract between the parties nor has TMP established that it did not anticipatorily breach the contract, which anticipatory breach would have freed Viking from following the contract. See, e.g., Coppola Construction Co., Inc. v. Hoffman Enterprises Limited Partnership, 157 Conn.App. 139, 161-62, 173 A.3d 876, 893-94 (2015). Accordingly. the court denies the motion to dismiss.
In its motion for directed verdict and motion to dismiss, TMP relied upon Shenkman-Tyler v. Central Mutual Ins. Co, 126 Conn.App. 733, 12 A.3d 613 (2011), for its argument that there is no practical relief here. In that case, however, the court found that in the parties’ previous divorce, the plaintiff had assigned all interests in the insurance policy to his ex-wife and that therefore he had no interest in the insurance policy at issue. By contrast, in this case, there is no evidence that Viking has no interest in the subcontract with TMP.
II. TMP’S MOTION TO SET ASIDE
TMP also moves to set aside the jury’s verdict on count one for breach of contract. This court "possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence." (Internal quotation marks omitted.) Howard v. MacDonald, 270 Conn. 111, 126, 851 A.2d 1142, 1150 (2004). A trial court "should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality." (Internal quotation marks omitted.) Id. In ruling on TMP’s motion, this court must view the evidence introduced at trial in the light most favorable to sustaining the verdict. Ormsby v. Frankel, 255 Conn. 670, 692, 768 A.2d 441, 453 (2001).
In support of its motion to set aside the verdict, TMP argues that (1) the court, rather than the jury, should have decided the breach of contract issues; (2) the court erred in instructing the jury on the manner in which it was to assess damages rather than giving the charge TMP requested; and (3) the verdict is ambiguous as to whether the amount that the jury awarded was intended to be assessed against the balance to bill amount that Viking held back or intended to be paid by TMP as damages on top of the amount held back by Viking.
A. The Jury Properly Decided the Breach of Contract Issues
First. TMP argues that the court, rather than the jury, should have decided the breach of contract issues in the first count of Viking’s second amended complaint because interpretation of a contract is a matter of law for the court. The court disagrees. The issues to be decided were whether there was a contract between the parties; whether Viking performed under the contract; whether TMP performed under the contract; and if TMP did not perform, whether Viking sustained damages and how much those damages were. Each of these were issues of fact. See CCT Communications, Inc. v. Zone Telecom, Inc., 324 Conn. 654, 675, 153 A.3d 1249 (2017), superseded on reconsideration on other grounds, 327 Conn. 114, 172 A.3d 1228 (2017). No contract interpretation was required to decide any of the elements of this claim. At most, even under TMP’s view of the case, only the issue of whether Viking can collect damages over and above the balance that Viking withheld would require contract interpretation.
The court’s instruction to the jury read as follows:
More significantly, the jury needed to make its factual findings before the court can even consider the contract interpretation arguments that TMP puts forth. Now that the court has the jury’s interrogatory responses, the court knows that the jury found as a matter of fact that TMP did not perform under the contract. Interrogatory No. 1B (No. 215.00). This finding is well supported by the evidence that TMP stopped working on the project on May 19, 2017, and did not resume working in response to Viking’s May 19, 2017 and May 23, 2017 communications. Those communications also made it clear that if TMP did not return to the job, Viking would seek to recover damages in addition to retaining the balance to bill that it retained. See Plaintiff’s Exs. 61, 67. The court also knows that the jury found that Viking was only entitled to recover the cost to repair defects because the $ 45, 373.88 awarded exactly corresponds to the repair costs on Plaintiff’s Ex. 115.
The court will now consider whether a reasonable jury could have based its verdict that awarded Viking its repair costs on the contract. TMP argues that Viking cannot recover anything in excess of the balance to bill that it retained except under § 11.2 of the contract and that § 11.2 cannot apply unless Viking terminated the contract. In response, Viking agrees that it did not terminate under § 11.2, but it argues that other provisions of the contract allow it to recover the $ 45, 373.88 in damages the jury awarded for the costs to repair defects. Viking specifically relies upon §§ 4.7, 5.8, 11.7, and 12.7 to argue that it is entitled to be paid over and beyond the balance to bill.
As an initial matter, the court holds that TMP is incorrect that the only route Viking could have taken to recover any damages above and beyond the balance to bill is to terminate TMP under § 11.2. Although that section explicitly allows Viking to recover above and beyond the balance to bill, both §§ 4.7 and 11.7 also expressly allow Viking to recover damages in addition to the balance to bill. Section 4.7 ends with the following language: "Contractor shall have the right to set off against any and all sums due and owing to Subcontractor the amount of such damages and Subcontractor further agrees that it will pay over to Contractor and/or other subcontractors amounts in excess of any such setoff." (Emphasis added.) Plaintiff’s Ex. 1 § 4.7. Section 11.7 is an election of remedies clause. It states in relevant part: "Any sum or sums chargeable to Subcontractor under any provision of this Subcontract ... may, at the election of Contractor, be deducted from any payments otherwise due or to become due to Subcontractor under this or any other project or subcontract between Contractor . and Subcontractor ... with any remaining amounts due to Contractor to be paid by Subcontractor, or Contractor may sue Subcontractor (and its surety) and recover damages." (Emphasis added.) Plaintiff’s Ex. 1 § 11.7.
The court agrees with TMP that § 4.7 does not support the jury’s verdict insofar as it awarded damages for repair of the defects. Section 4.7, which is part of Article 4 entitled "Time of Commencement and Completion," is predicated on TMP causing a delay in its own work or the work of Viking or other subcontractors. Although there was plenty of testimony at the trial that TMP was behind schedule, a finding by the jury that TMP was delayed would not be relevant to whether or not TMP’s work was defective.
The court finds, however, that other provisions of the contract support the jury’s award. As Viking pointed out in its closing argument and in its opposition memorandum to this motion, § 5.8 provides that "[a]pproval and payment of Subcontractor’s monthly requisition does not constitute or imply acceptance by the Contractor or Owner of any portion of the Subcontractor’s Work." Plaintiff’s Ex. 1 § 5.8. Based on the evidence, a reasonable jury could find that Viking paid TMP soon after it submitted its requisitions without doing an inspection of the work before making those payments. The jury also heard from Craig Benak that he found defects in the work and took photographs of those defects and hired someone else to make repairs after TMP left. September 20, 2018 Tr. Under Article 9, TMP warrantied its work. Section 9.1 provides that if the subcontractor does not replace or repair its defective work: "Contractor shall have the right itself, or through others, to remove said part of the Work and to purchase from others in the market or otherwise and install new materials or equipment in replacement thereof, and the cost and expense thereof, together with the expense to Contractor of making good all other work and property destroyed or damaged by the condition requiring such replacement, shall be paid by Subcontractor to Contractor on demand." (Emphasis added.) Ex. 1, § 9.1. A reasonable jury could have found that this right in § 9.1 for Viking to be paid by TMP on demand could be fulfilled by awarding damages above and beyond the balance to bill under § 11.7.
The jury’s failure to award Viking any damages for cost to complete or for indemnification for Viking’s settlement with TMP’s drywall supplier, Marjam, is consistent with this analysis. Neither the costs to complete nor the Marjam costs fit in any provision of the contract that would have allowed Viking to recover above the balance to bill. These costs were not incurred because of delay so as to trigger § 4.7 nor were they covered -by an express provision of the contract such as § 9.1 so that Viking could elect remedies under § 11.7. Therefore, as to the costs to complete, Viking appears to have been limited to recovering the balance to bill, which is implicit in the jury’s verdict that only awarded money damages for the repair of the defects.
Notably, the jury found against Viking on its second count, indemnification for the Marjam settlement.
Viking would have had an alternative route to recover at least its costs to complete above the balance to bill if it had pursued a claim that TMP anticipatorily breached the contract, thus freeing Viking from the terms of the contract. "[A]n anticipatory breach discharges any remaining duties of the non-breaching party, and once there has been a repudiation that party is no longer required to hold himself ready, willing and able to perform." Coppola Construction Co. v. Hoffman Enterprises Limited Partnership, 157 Conn.App. 139, 161, 173 A.3d 876, 893-94 (2015). Viking, however, did not ask for jury instructions on that theory.
TMP attempts to buttress its interpretation of this contract with our Supreme Court’s decision in Old Colony Construction, LLC v. Southington, 316 Conn. 202, 113 A.3d 406 (2015) and the New York Appellate Division’s decision in Tishman Construction Corp. v. New York, 228 App.Div.2d 292, 643 N.Y.S.2d 589 (1996). The court does not agree that these decisions control the interpretation of this contract. Both of these cases involved public contracts that municipalities terminated for convenience. In this case, by contrast, no one referred to the termination for convenience clause, § 11.5. More fundamentally, the Tishman and Old Colony decisions were decided based on the language of the contracts before them. Neither decision held that for all construction contracts, there can be no recovery of money damages except under termination for cause clauses. Although the Tishman court did not allow the city to recoup the expenses of curing the contractor’s default after the city terminated for convenience rather than for cause, there was no reference in that decision to any other provision of the contract that explicitly provided for recovery of those expenses other than the termination for cause clause. Tishman Construction Corp. v. New York, supra, 293, 643 N.Y.S.2d at 590. Indeed, in Old Colony, our Supreme Court distinguished Tishman because the contract language differed. Old Colony Construction, LLC v. Southington, supra, 215 n.6, 113 A.3d at 413. Although the Supreme Court observed that the town’s cost to complete damages could be recovered under the termination for cause clause but not under its termination for convenience clause, that observation was based on the language of the contract in that case. See id., 218-19, 113 A.3d at 415. Moreover, the Supreme Court went on to allow the town to recover liquidated damages in addition to its remedies under the termination for convenience clause because that contract permitted that remedy. Id., 219, 113 A.3d at 406. Accordingly, neither of these cases provide a basis to set aside the jury’s verdict here.
In the present case, if both parties had agreed that the contract was clear and unambiguous, the court could have undertaken the contract interpretation analysis set out above and explicitly told the jury that it could award damages above and beyond the balance to bill based on these provisions. Nonetheless, that would not have changed the result. There is ample evidence upon that the jury might reasonably have reached their conclusion, and therefore, the court will not set aside the verdict.
B. There Was No Error in Instructing the Jury
Second, TMP also complains that the court erred by not giving a jury instruction in accordance with its request number eleven, which read as follows:
In this case Viking claims TMP breached the parties’ subcontract when it refused to return work on the project in late May 2017. On account of this claimed contract breach Viking seeks a money damage award measured by its costs to complete and repair TMP’s contractual scope of work less the money yet left to pay TMP on the contract. During the trial Viking denied that it ever terminated the parties’ contract. Indeed, there was no evidence submitted to show that Viking ever gave TMP due notice under the terms of the contract that Viking was terminating the contract. If you find TMP to have breached the parties’ contract when it refused to return to work on the project in late May 2017, Viking is entitled to recover the costs it incurred to complete and repair TMP’s contractual scope of work, but only up to the balance yet due to TMP under the contract, which the parties agreed was $ 350, 685.66. This is because the parties’ contract sets forth the respective rights and liabilities between the parties, and pursuant to the contract Viking would be entitled to its costs to complete or repair in excess of the remaining contract balance, $ 350, 685.66 only if it had effected a formal termination under Article 11.2 of the contract. Having failed to so, Viking’s is limited under Article 11.1 to the balance yet due. Because the $ 350, 685.66 balance due to TMP under was never paid to TMP, Viking has not proved any damages, which is an essential element in a breach of any breach of contract action, and I therefore instruct you to render a verdict in favor of TMP on Viking’s breach of contract claim.
TMP submitted this request and took exception after the court instructed the jury otherwise, but the court holds that it was not error for it to refuse to give an instruction that tracked this request. A trial court should not instruct the jury in accordance with a request to charge unless it is a correct statement of the governing legal principles. Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 248, 943 A.2d 430, 440 (2008). For the reasons set forth above, the court finds that Viking was not limited to § 11.2 as its only route to recovery of damages above the balance to bill. Accordingly, it would have been improper to instruct the jury that it had to cap Viking’s recovery for all of the damages it sought to the balance to bill. The court will not set aside the verdict on this basis.
C. The Verdict Was Not Ambiguous
Finally, TMP argues that because the court did not give the jury explicit direction in the instruction and the interrogatory about how to address the various contract terms, the verdict is ambiguous as to whether the $ 45, 373.88 that the jury awarded was a sum of money damages that TMP must pay Viking or whether that amount should just be credited against the balance to build that Viking is holding.
TMP did not submit any proposed jury interrogatories on Viking’s claims. Cf. Jones v. Kramer, 267 Conn. 336, 349-50, 838 A.2d 170, 178 (2004) (placing the burden on the defendant to provide jury interrogatories for all medical bills subject to collateral source reductions).
When, as here, there is a claim that the verdict is ambiguous, "[i]t is not the function of a court to search the record for conflicting answers in order to take the case away from the jury on a theory that gives equal support to inconsistent and uncertain inferences ... A verdict is not deemed defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear ... A verdict will be deemed intelligible if it clearly manifests the intent of the jury." (Citations omitted; internal quotation marks omitted.) Micalizzi v. Stewart, 181 Conn.App. 671, 676-77, 188 A.3d, 159, 165 (2018). "[T]he intent of the jury can be determined by reference to the pleadings, the evidence, the admissions of the parties, the instructions, and the forms of the verdicts submitted." 75B Am.Jur.2d Trial § 1491; see generally Wichers v. Hatch, 252 Conn. 189-90, 745 A.2d 789, 189 (holding that if trial court examines evidence and finds what jury reasonably could have found in the verdict, then court should find verdict was what jury intended to do). "In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict." (Internal quotation marks omitted.) Wallace v. Haddock, 77 Conn.App. 634, 637, 825 A.2d 148, 151 (2003).
Here, the jury was given the standard expectation damages instruction:
Any damages you award should be designed to place Viking, so far as can be done by money, in the same position as that which it would have been in had the terms of the Subcontract Agreement been fully satisfied by TMP. You should determine the fair and reasonable value, in money, of the position Viking would have been in if the TMP had fully performed under the Subcontract. Then you should determine the fair and reasonable value, in money, of the position Viking was in at the time of the TMP’s breach of the Subcontract. The difference between the amount for performance and the amount for breach should be your award.
Court Ex. E. After hearing that instruction and having it available to them in the deliberation room, the jury responded to Interrogatory No. 1D, which asked:
What amount of money, if any, has Viking proven by a preponderance of the evidence to be fair and reasonable to put Viking in the position it would have been in had TMP not breached the parties’ Subcontract?No. 215.00.
In its verdict form in favor of Viking, the jury filled in the breach of contract section as follows:
We, the jury find the issues in favor of Plaintiff, Viking Construction, Inc. and against Defendant, TMP Construction Group, LLC and award damages as follows: $ 45, 373.88.
Reading the instruction, the interrogatory and the verdict form together, and interpreting them according to this guidance from the case law, the court finds that the verdict is not ambiguous. The verdict form says "we, the jury ... award damages ..." The interrogatory asks about an "amount of money." The instruction refers in multiple places to "money" and "damages."
" ‘[D]amages, ’ which has acquired a specific meaning in the law, is defined as ‘[m]oney claimed by, or ordered to be paid to, a person as compensation for loss or injury.’" Hicks v. State, 297 Conn. 798, 803, 1 A.3d 39, 43 (2010), quoting Black’s 14 Law Dictionary (9th Ed. 2009). "The term ‘money damages, ’ ... normally refers to a sum of money used as compensatory relief. Damages are given to the plaintiff to substitute for a suffered loss ..." (Citation omitted; emphasis in original; internal quotation marks omitted.) Bowen v. Massachusetts, 487 U.S. 879, 895, 108 S.Ct. 2722, 2732, 101 L.Ed.2d 749, 764 (1988) (distinguishing "money damages" from "monetary relief" in its construction of 5 U.S.C. § 702).
Although the instruction, interrogatory and verdict form did not refer to the balance to bill that Viking retained, the jury clearly consulted Exhibit 115 to determine the $ 45, 373.88 amount and that document explicitly referred to the amount of the balance to bill in the form of a negative by putting it in parentheses: ($ 350, 685.66) and subtracting it from the amounts claimed. This evidence further supports the interpretation of the jury’s verdict as requiring TMP to pay damages. The verdict manifests the jury’s intent on the breach of contract count that TMP pay damages in the amount of $ 45, 373.88.
The parties have not directed the court to any case law on this issue, and the court has not found factually apposite cases. In one decision, the appellate division of the Superior Court held that even though a jury awarded damages "plus applicable interest dollars damages" without calculating the interest, that verdict was "merely a shorthand method of saying that interest is awarded at the legal rate from the time the money became payable." Nigro v. Hagearty, 33 Conn.Supp. 609, 610-11, 364 A.2d 241, 242-43 (App.Sess. 1976).
III. VIKING’S MOTION FOR SANCTIONS
Viking moves for its costs of responding to this motion on the grounds that this court has inherent authority to impose sanctions for dilatory, bad faith and harassing litigation conduct," citing DuBois v. William W. Backus Hospital, 92 Conn.App. 743, 748, 887 A.2d 407, 411 (2005), cert. denied, 278 Conn. 907, 899 A.2d 35 (2006) (where the sanctioned party had engaged in a consistent pattern of discovery abuse throughout the litigation). Viking argues that sanctions are appropriate here because TMP’s motion is "baseless" and TMP misstated the holding of Old Colony. Although the court denies all of the relief requested by TMP in its motions, the court finds that TMP’s motion was not baseless.
The court specifically finds that TMP’s motion to set aside raised serious issues. TMP made plausible arguments that the court could have interpreted the contract first and provided more specific instructions to the jury as to how to calculate the damages in this case and that the court could have restated the interrogatories to make it clearer that the jury was awarding damages on top of the balance to bill already held by Viking. The fact that neither of these warranted setting aside the verdict does not render TMP’s motion baseless or frivolous. Our Supreme Court has adopted the following standards: "[A]n action is frivolous ... if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law." (Emphasis omitted; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 254-55, 828 A.2d 64, 95 (2012), quoting Rule of Professional Conduct 3.1. Viking has not established that either of these standards have been met here. Therefore, the court denies Viking’s motion for costs.
CONCLUSION
For the foregoing reasons, TMP’s Motion to Dismiss is denied, TMP’s Motion to Set Aside is denied, and Viking’s Motion for Costs is denied.
Viking claims that the TMP breached its Subcontract with Viking. In order to recover on a breach of contract claim, Viking must prove:
(i) the formation of an agreement with TMP;
(ii) that Viking performed its obligations under the agreement;
(iii) that TMP failed to perform its obligations under the agreement; and
(iv) as a result, Viking sustained damages.
TMP has admitted that a valid written contract exists between Viking and TMP. Pursuant to the terms of the Subcontract between Viking and TMP, TMP, as subcontractor, agreed to furnish all labor and equipment and other incidentals necessary for performance of the drywall work required for the construction of Crescent Crossing 1B Project in Bridgeport, Connecticut, in exchange for payment of the lump sum Subcontract Price. Viking claims that TMP breached the Subcontract by failing to perform in accordance with the terms of the Subcontract and that as a direct and proximate result of TMP’s breach, Viking has been damaged.