Opinion

Court: District Court, M.D. Louisiana
Filed: Feb 4, 2026
Cited by: 0 cases
Authority: More cited than 38.5%

“The [Supreme] Court often applies this interpretive rule, usually referred to as the ‘series-qualifier canon.’”

How later courts described this case

“The [Supreme] Court often applies this interpretive rule, usually referred to as the ‘series-qualifier canon.’”
“Avatar’s ulterior motive for De Pani’s termination has no relevance[,] as Article 67 of the Master Contract provided Avatar with the right to terminate De Pani at any time. Florida law required nothing more of Avatar.” (internal citation omitted)
explaining that “sole discretion” is a “high degree of discretion”
finding that, although the management agreement required written notice of termination, plaintiff waived this requirement by his conduct and by failing to raise the issue of written notice until suit was filed

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA,

for the use and benefit of

TIMBERLINE CONSTRUCTION

GROUP, LLC

CIVIL ACTION

VERSUS

NO. 24-669-JWD-EWD

APTIM FEDERAL SERVICES, LLC,

ET AL.

RULING AND ORDER

This matter comes before the Court on APTIM’s Motion for Partial Summary Judgment

(“Partial MSJ”) (Doc. 118) filed by APTIM Federal Services, LLC (“APTIM”). Timberline

Construction Group, LLC (“Timberline”) opposes the motion. (Doc. 134.) APTIM filed a reply.

(Doc. 139.) Oral argument is not necessary. The Court has carefully considered the law, the facts

in the record, and the arguments and submissions of the parties and is prepared to rule. For the

following reasons, APTIM’s Partial MSJ is granted.

I. RELEVANT BACKGROUND

A. Factual Background

Following Hurricane Ian, the United States Army Corps of Engineers (“USACE”)

undertook to build temporary housing (“the Project”) in Lee County, Florida. (Statement of

Material Facts (“SMF”), Doc. 118-1 at 1, ¶ 1.)1 The USACE hired Brice Aptim JV, LLC

(“BAJV”) as general contractor. (Id.) BAJV subcontracted work to its member APTIM. (Id. at 1,

¶ 2.) In turn, APTIM subcontracted work to Timberline. (Id. at 1–2, ¶ 3.) Under the subcontract

1 Unless otherwise indicated (e.g., with a qualifying record citation), when the Court cites the Statement of Material

Facts, Timberline has admitted the cited material. See M.D. La. Civ. R. 56(f).

between APTIM and Timberline (“the Timberline Subcontract”), Timberline was to construct the

Project’s water, sewer, and drainage systems, among other improvements. (See Doc. 118-4 at 40.)

The USACE’s specifications for the Project incorporated the Lee County Utilities Operational

Manual (“the Manual”). (See, e.g., Doc. 118-5 at 131 n.1.) Section 3 of the Manual—titled

“Sanitary Sewer Systems”—therefore controlled Timberline’s work on the sewer system. (Id. at

146.) Section 3.4 opens: “It is imperative that all sanitary sewers and associated service lines be

constructed watertight to prevent infiltration and/or exfiltration.” (Id. at 157.)

1. Timberline Subcontract

The Timberline Subcontract provided that Timberline “shall supervise and direct the

Subcontract Work, and shall cooperate with [APTIM] in scheduling and performing the

Subcontract Work to avoid conflict, delay in, or interference with the Project, the [USACE], or

[APTIM].” (Doc. 118-4 at 45.) Timberline had “the sole authority to control and direct the

performance of the details of the Subcontract Work being rendered by its and its lower tier sub-

subcontractors’ employees.” (Id. at 54.) “[T]he detail, manner and method of performing

Subcontract Work [was] the responsibility of, and under the supervision and control of

[Timberline] and its Subcontractors.” (Id.) In addition, Timberline warranted that its work would

be (i) of good quality and new, and free from defects and deficiencies (including

with respect to, but not limited to, materials, construction, design, title and

workmanship); (ii) fit for the purposes specified in the Subcontract or, where no

such purpose [wa]s specified, fit for its ordinary purpose; (iii) performed in

accordance with all law; (iv) performed in accordance with the specifications,

requirements and conditions of the Subcontract; (v) performed in accordance with

the Project schedule or otherwise timely; (vi) performed with a high degree of care

and professional skill and diligence and (vii) sufficient to achieve the performance

criteria (if any) set out in the Subcontract.

(Id. at 50.) Any work which did not conform to the above was “defective.” (Id.) “[W]ithin 24 hours

of discovering defective work or after receiving notice from [APTIM],” Timberline was required

to “proceed to take down and remove” all defective work and to “replace same with proper and

satisfactory Subcontract Work.” (Id.) Lastly, APTIM was authorized to terminate the Timberline

Subcontract “by issuance of a written termination notice to [Timberline]” if

in [APTIM’s] sole discretion, any or all Subcontract Work to be performed under

[the Timberline] Subcontract [wa]s abandoned by [Timberline]; or [Timberline]

fail[ed] to meet its payroll or other current obligations, or allow[ed] any liens to

attach to the site of the Subcontract Work or bonds; or the schedule of the

Subcontract Work [wa]s not being maintained; or [Timberline] [wa]s in breach of

or [wa]s otherwise violating any of the conditions, provisions, obligations, or

representations contained in the[] [Terms & Conditions] or [the Timberline]

Subcontract, in whole or in part; or [Timberline] [wa]s refusing or failing to

perform properly any Subcontract Work; or [Timberline] [wa]s failing to provide

the labor, supervision, tools, equipment or materials necessary for the prompt

performance of the Subcontract Work or [wa]s failing to use due diligence in the

performance thereof . . . .

(Id. at 58 (emphasis added).)

Absent any state laws governing the contract between the USACE and BAJV (“the Prime

Contract”), the Timberline Subcontract was to be “governed by and interpreted pursuant to the

rules and laws of the state” where the Prime Contract work was performed. (Id. at 61.) The Prime

Contract provided only that “United States law will apply to resolve any claim of breach.” (Doc.

118-3 at 169.) The parties therefore agree that Florida law governs the Timberline Subcontract.

(See Doc. 118-2 at 7 (“Florida contract law will supply the key princip[le]s applicable here.”);

Doc. 134 at 13, 23 (applying Florida’s implied covenant of good faith and fair dealing).)

2. Timberline’s Performance

The USACE issued a “Notice to Proceed” with the Project on April 21, 2023. (Doc. 136-4

at 1–2.) The period of performance was 60 days—from April 21 until June 20, 2023. (Id.) On May

6, 2023, Timberline notified APTIM of “potential delays in the schedule due to unforeseen

conditions,” including a layer of limestone rock, changes to the design of the Project, and “design

issues” like “incorrect elevations” and “unidentified existing systems/structures.” (Doc. 136-8 at

1–2; see also Doc. 134-1 at 20, ¶ 7.) Timberline reserved its right to seek an extension of time for

performance and advised that it would (1) keep APTIM apprised of delays and (2) “diligently seek

to minimize . . . the effects of the[] [existing] delays on [Timberline’s] work.” (Doc. 136-8 at 2.)

On May 25, 2023, APTIM sent a cure notice to Timberline via e-mail. (Doc. 118-7 at 1–

2.) That notice expressed concern that, “based on the level of resources . . . on site,” Timberline

would not meet its deadline. (Id. at 2.) It also informed Timberline that APTIM would “mobilize”

its own resources in order to assist Timberline. (Id.) APTIM was entitled to do so under the

Timberline Subcontract. (See Doc. 118-4 at 60.) As directed by the cure notice, Timberline

provided APTIM with a corrective action plan on May 26, 2023. (Doc. 118-1 at 2, ¶ 6.) That plan

indicated that Timberline was already working on the sewer system and estimated completion

thereof by June 6, 2023. (Doc. 118-7 at 5.) It also explained that, by May 30, 2023, Timberline

expected to have approximately 16 employees working on site. (Id. at 6.) Between May 25 and

May 29, 2023, Timberline had 17–18 employees on site. (Doc. 118-1 at 3, ¶ 11.) APTIM “did not

have a single operator or laborer on site” on May 27, 2023. (Id. at 3, ¶ 12.) It had one operator on

site on May 28, 2023. (Id.) And it had one operator and one laborer on site on May 30, 2023.2 (Id.)

On May 29, 2023, the USACE sent BAJV a letter expressing concern over “significant

deficiencies” with “the [P]roject’s underground utilities.” (Doc. 118-7 at 9.) The USACE attributed

at least some of the defective work to “lack of proper equipment” and “lack of qualified personnel,”

as well as failures of quality control. (Id.) APTIM forwarded this letter to Timberline on May 30,

2023. (Doc. 118-9 at 1–3.) Subsequently, on June 1, 2023, a Lee County inspector noted that “no

2 The parties do not mention May 29, 2023. (See, e.g., Doc. 118-1 at 3, ¶¶ 11–12 (citing Doc. 118-3 at 517–31).)

Having examined the record, the Court observes that the “Daily Log of Construction” cited by APTIM jumps from

Sunday, May 28 to Monday, May 30. (Doc. 118-3 at 524–25.) May 30 fell on a Tuesday in 2023. Presumably, then,

when the parties discuss the number of APTIM operators and laborers on-site on May 30, they are actually discussing

the number of APTIM operators and laborers on-site on May 29. But because the “Daily Log of Construction” does

not clearly indicate whether the day of the week or the date itself is incorrect—and because the parties do not dispute

the facts which rely on this record citation—the Court will use May 30, same as the parties.

less than ten sewer service laterals were incorrectly installed and required rework.” (Doc. 118-1 at

3, ¶ 13.) In addition, this inspector “personally observed laterals being installed in violation of Lee

County specifications.” (Id.) Timberline was performing this defective work. (Id. at 4, ¶ 16.) At

the USACE’s direction, incorrectly installed lines were “ripped out and replaced.” (Id. at 4, ¶ 15.)

On June 8, 2023, APTIM issued a second cure notice to Timberline. (Doc. 118-7 at 19–

20.) The subject line read: “CURE NOTICE – Failure to Construct, Failure to provide appropriate

and trained personnel, Failure to meet technical project requirements without re-work.” (Id. at 19

(emphasis omitted).) The notice identified defective work performed on multiple occasions,

including on June 8 and “[d]uring the first visit by Lee County, on June 1.” (Id. at 19–20.) APTIM

warned that “[a] single additional instance of re-work caused by Timberline’s inability to

construct accurately and in accordance with specifications and schedule w[ould] result in

immediate termination for default.” (Id. at 20 (emphasis in original).) APTIM requested that

Timberline submit another corrective action plan. (Id.)

In its second corrective action plan, Timberline assured APTIM that it “ha[d] the resources,

skilled trades, and management” to perform “in accordance with the plans and specifications and

within the contract period of performance.” (Id. at 21.) It pointed, however, to “delays beyond [its]

control,” including “unquantifiable delays . . . caused by BAJV personnel added to ‘assist’

Timberline.” (Id.) Timberline suggested that the defective work on June 8 “could have been

avoided if APTIM and Br[i]ce’s personnel were not involved in the construction activities.” (Id.)

As for the defective work on June 1, Timberline acknowledged that it had “misinterpreted the

plans,” although it blamed this mistake on “drawing inconsistencies.” (Id. at 22.) Timberline added

that neither the USACE nor BAJV had “raise[d] concerns about improperly installed sewer lines

during the installation.” (Id.) Lastly, Timberline reiterated that it “c[ould] complete th[e] work as

required by the plans and specifications and within the required timeline.” (Id.)

Subsequently, the Lee County inspector performed “a couple” of pressure tests in order to

ensure that the sewer system was watertight. (Doc. 118-10 at 12–13; see also Doc. 118-5 at 146,

157 (“It is imperative that all sanitary sewers and associated service lines be constructed watertight

to prevent infiltration and/or exfiltration.”).) The sewer system failed these pressure tests and

therefore was “not acceptable to Lee County.” (Doc. 118-10 at 13.) Timberline was present for the

failed tests. (Id.) Additionally, Timberline noted in its Daily Reports from June 21 through June

24, 2023, that it was finding and repairing sewer leaks. (Doc. 118-7 at 54, 70, 105, 109, 157, 186.)

APTIM and Brice assigned employees to “supplement Timberline’s . . . work” on the sewer

system. (Doc. 136-32 at 7–8.) The parties dispute whether and to what extent APTIM and Brice

employees worked in their own crews, as opposed to being under Timberline’s supervision.

(Compare Doc. 118-15 at 4–5, with Doc. 136-34 at 8–9, 13; Doc. 136-35 at 6; Doc. 136-36 at 7.)

Regardless, these APTIM and Brice employees seemingly worked extensively on the sewer mains.

(See, e.g., Doc. 136-33 at 3; Doc. 136-34 at 10; Doc. 136-35 at 3–5; Doc. 136-36 at 5; Doc. 136-

39 at 3–4; Doc. 136-41 at 5–6.) However, the Lee County inspector testified that, when he visited

the site, “[i]t was Timberline doing most of the sewer line work”—both to the sewer mains and to

the sewer laterals. (Doc. 118-10 at 5.) According to the inspector, Timberline’s employees were

readily identifiable because “[t]hey had their Timberline shirts on.” (Id. at 5–6.) At the time, the

inspector did not see APTIM or Brice employees working on the sewer line. (Id. at 6.)

While on site, Timberline “attended meetings with [the] USACE where [the USACE] was

critical of the [Project’s] infrastructure construction.” (Doc. 118-1 at 8, ¶ 41.) Further, the USACE

“regularly requested” that BAJV’s responsible manager “accompany [the] USACE into the field

to look at deficiencies in Timberline’s work.” (Id. at 8, ¶ 42; see also Doc. 118-14 at 6–7

(explaining that the USACE was “severe[ly] frustrat[ed]” with Timberline and was “on board and

agreed with terminating Timberline”).)

On June 23, 2023, APTIM sent Timberline a “Notification of Breach of Contract,”

explaining that the period for “substantial completion” of the Project had already elapsed and that

“[Timberline’s] performance ha[d] resulted in a delay which forecast[] [late] completion of the

[P]rime [C]ontract . . . and therefore [wa]s in breach.” (Doc. 118-7 at 190–91.) Then, on June 25,

2023, APTIM informed Timberline via e-mail that it was terminating the Timberline Subcontract.

(Doc. 118-4 at 66.) A more formal “Notice of Termination for Default” followed on June 27, 2023.

(Doc. 118-7 at 192–93.) In that notice, APTIM explained that it was terminating Timberline for

“the continued performance and schedule issues addressed with Timberline” via on-site meetings

and correspondence. (Id. at 192.) “At the time Timberline was terminated, Lee County had not

accepted any of the work performed by Timberline on the sewer lines.” (Doc. 118-1 at 8, ¶ 40.)

B. Procedural Background

Timberline filed suit against APTIM in the Middle District of Florida on August 11, 2023.

(Doc. 1.) On August 15, 2024, the Middle District of Florida transferred the case to this Court due

to a forum-selection clause in the Timberline Subcontract. (Doc. 66.) Shortly before transfer—on

July 31, 2024—Timberline filed its Third Amended Complaint (Doc. 63), bringing claims against

APTIM for, inter alia, breach of contract and breach of the implied covenant of good faith and fair

dealing. (Doc. 63 at 13, 15–16.) Both of these claims allege that APTIM improperly terminated

Timberline for default. (Id.) The parties have sought a bench trial in the present case. On August

29, 2025, APTIM filed the instant motion, seeking partial summary judgment “on the issue of

whether APTIM properly terminated, for cause, its contract with [Timberline].” (Doc. 118-2 at 1.)

II. SUMMARY JUDGMENT STANDARD

“The court shall grant summary judgment if 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). “The movant bears the initial burden and must identify ‘those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’”

Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted)).

“A movant for summary judgment need not set forth evidence when the nonmovant bears

the burden of persuasion at trial.” Wease v. Ocwen Loan Servicing, L.L.C., 915 F.3d 987, 997 (5th

Cir. 2019) (citing Celotex, 477 U.S. at 323 (“[W]e find no express or implied requirement in Rule

56 that the moving party support its motion with affidavits or other similar materials negating the

opponent’s claim.” (emphasis in original))). “The moving party may meet its burden to

demonstrate the absence of a genuine issue of material fact by pointing out that the record contains

no support for the non-moving party’s claim.” Id. (quoting Stahl v. Novartis Pharm. Corp., 283

F.3d 254, 263 (5th Cir. 2002)).

If the movant bears its burden of showing that there is no genuine issue of material fact,

“its opponent must do more than simply show that there is some metaphysical doubt as to the

material facts. . . . [T]he nonmoving party must come forward with ‘specific facts showing that

there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586–87 (1986) (internal citations omitted) (quoting Fed. R. Civ. P. 56(e)). The nonmovant’s

burden is not satisfied by “conclusory allegations, by unsubstantiated assertions, or by only a

scintilla of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per

curiam) (cleaned up).

Additionally, “[w]hen evidence exists in the summary judgment record but the nonmovant

fails even to refer to it in the response to the motion for summary judgment, that evidence is not

properly before the district court.” Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (citing

Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Skotak v. Tenneco Resins,

Inc., 953 F.2d 909, 916 (5th Cir. 1992)). “Rule 56 does not impose upon the district court a duty

to sift through the record in search of evidence to support a party’s opposition to summary

judgment.” Id. (quoting, inter alia, Ragas, 136 F.3d at 458); see also Nissho-Iwai Am. Corp. v.

Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (rejecting the position “that the entire record in the

case must be searched and found bereft of a genuine issue of material fact before summary

judgment may be properly entered”); cf. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)

(per curiam) (“Judges are not like pigs, hunting for truffles buried in briefs.”).

“[W]here the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., 475 U.S. at 587

(cleaned up). Further:

In resolving the motion, the court may not undertake to evaluate the credibility of

the witnesses, weigh the evidence, or resolve factual disputes; so long as the

evidence in the record is such that a reasonable jury drawing all inferences in favor

of the nonmoving party could arrive at a verdict in that party’s favor, the court must

deny the motion.

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991) (citations omitted).

Finally, the Fifth Circuit has explained:

“[A] district court has somewhat greater discretion to consider what weight it will

accord the evidence [presented on a motion for summary judgment] in a bench trial

than in a jury trial.” If a “[bench] trial on the merits will not enhance the court’s

ability to draw inferences and conclusions, then a district court properly should

‘draw his inferences without resort to the expense of trial.’” However, the Fifth

Circuit has cautioned that “a district court must be aware that assessments of

credibility come into sharper focus” at the time of trial, therefore, “even at the

summary judgment stage a judge in a bench trial has the limited discretion to decide

that the same evidence, presented to him or her as trier of fact in a plenary trial,

could not possibly lead to a different result.”

Turner v. Pleasant, No. 10-1823, 2013 WL 823426, at *7 (E.D. La. Mar. 6, 2013) (quoting In re

Placid Oil Co., 932 F.2d 394, 397–98 (5th Cir. 1991)); accord In re Ecoserv, No. 19-132, 2021

WL 26953, at *2 (M.D. La. Jan. 4, 2021) (Dick, C.J.); see also In re Placid Oil Co., 932 F.2d at

398 (“We follow the Nunez court in recognizing that it makes little sense to forbid the judge from

drawing inferences from the evidence submitted on summary judgment when that same judge will

act as the trier of fact, unless those inferences involve issues of witness credibility or disputed

material facts.” (citing Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir. 1978))).

III. PARTIES’ ARGUMENTS

A. APTIM’s Partial MSJ (Doc. 118)

APTIM stresses that the only question currently before the Court is whether, in terminating

the Timberline Subcontract, APTIM “exercised its sole discretion in good faith.” (Doc. 118-2 at

1.) According to APTIM, it did. (Id.) Specifically, APTIM terminated the subcontract because

Timberline engaged in “unsafe work practices,” performed “defective[]” work, and “refus[ed] to

procure a payment and performance bond.” (Id. at 2.) Consequently, APTIM says, partial summary

judgment is warranted, and the Court should “find[] that [APTIM] properly terminated Timberline

for cause under the subcontract terms[,] with damages to be determined at trial.” (Id.) APTIM

notes also that Timberline “has failed to allege that APTIM acted in bad faith in exercising its sole

discretion” to terminate Timberline. (Id. at 1 n.2.) Such a claim would require showing “that

APTIM acted capriciously and that ‘no reasonable party would have made the same discretionary

decision.’” (Id. at 2 (quoting Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1291 (11th

Cir. 2001) (cleaned up)).)

APTIM recites the following legal principles: First, the meaning of each contract provision

is a question of law. (Id. at 7 (citing Otis Elevator v. WG Yates & Sons Constr. Co., 589 F. App’x

953, 958 (11th Cir. 2014) (per curiam)).) Second, a court must read contract provisions

“harmoniously,” giving effect to each. (Id. (quoting Devs. Sur. & Indem. Co. v. Archer W.

Contractors, LLC, No. 16-1875, 2018 WL 2100032, at *5 (M.D. Fla. May 7, 2018)).) And third,

under Florida law, contracts “contain an implied covenant of good faith and fair dealing.” (Id.

(citing Archer, 2018 WL 2100032, at *8, *11).) This covenant limits “somewhat” provisions

allowing parties to act in their “sole discretion.” (Id. (emphasis omitted) (quoting Ernie Haire

Ford, 260 F.3d at 1291).) A discretionary decision is made in bad-faith if “no reasonable party

would have made [it].” (Id. (emphasis omitted) (quoting Ernie Haire Ford, 260 F.3d at 1291).)

But otherwise, this “sole discretion” language affords “substantial leeway.” (Id. (emphasis

omitted) (quoting Archer, 2018 WL 2100032, at *11).)

APTIM argues that the Timberline Subcontract’s “Termination for Default” provision

allowed APTIM to terminate Timberline if, in APTIM’s sole discretion, Timberline (1) breached

the Timberline Subcontract in whole or in part; (2) “fail[ed] to perform properly any Subcontract

Work”; (3) performed work “not in accordance with the terms of the Subcontract”; or (4) “fail[ed]

to provide the labor, supervision, tools, equipment or materials necessary for the prompt

performance of the Subcontract Work.” (Id. at 8 (quoting Doc. 118-4 at 58).) In APTIM’s view, it

“had at least three legitimate reasons for terminating Timberline.” (Id. at 9.)

1. Defective Work

First, Timberline’s work (e.g., installing sewer lines, installing the reinforced concrete pipe

used in the stormwater system) was defective. (Id. (referencing Doc. 118-4 at 50–51).) And despite

receiving a cure notice on May 25, 2023, “Timberline failed to remedy” the defects. (Id. at 10; see

also id. at 10–11 (citing Doc. 118-5 at 26–28; Doc. 118-7 at 1–8).)3 On May 29, 2023, the USACE

issued a “letter of concern” to APTIM, noting “significant deficiencies” with the sewer system,

which “appeared to be the result of a lack of proper equipment . . . [and] qualified personnel.” (Id.

at 11 (quoting Doc. 118-7 at 9).) APTIM forwarded this letter to Timberline on May 30, 2023. (Id.

(citing Doc. 118-9).) Then, on June 1, 2023, a Lee County inspector “personally observed”

Timberline employees performing defective work. (Id. (citing Doc. 118-10 at 11–12).) Timberline

admits that it was performing defective work on that day. (Id. at 11–12 (citing Doc. 118-5 at 32).)

On June 8, 2023, APTIM sent Timberline a second cure notice. (Id. at 12 (citing Doc. 118-

7 at 19–20).) At that time, APTIM informed Timberline that “[a] single additional instance of re-

work caused by Timberline’s inability to construct accurately and in accordance with

specifications and schedule w[ould] result in immediate termination for default.” (Id. at 12

(emphasis omitted) (quoting Doc. 118-7 at 20).) Thereafter, the sewer lines installed by Timberline

failed to pass the pressure tests required by the Timberline Subcontract. (Id. at 12–13 (citing, inter

alia, Doc. 118-10 at 13; Doc. 118-7 at 47–193; Doc. 118-5 at 131 n.1).) “At the time Timberline

was terminated, Lee County had not accepted any of the work performed by Timberline on the

3 Throughout its brief, APTIM has cited “deposition exhibits” contained within larger submissions. (See, e.g., Doc.

118-2 at 12 n.62.) In particular, APTIM makes frequent reference to deposition exhibits within Exhibit C. (Id.) Exhibit

C is more than 1,200 pages long. Deposition exhibit numbers appear only on the first page of each deposition exhibit.

APTIM has provided no other way to identify deposition exhibits, forcing the Court to search (repeatedly) for the

needle in the haystack. The parties are reminded that it is not the job of this Court to sift through thousands of pages

to find the parties’ support for their respective positions. See, e.g., M.D. La. Civ. R. 7(d), (f); id. 56(f); see also Dunkel,

927 F.2d at 956 (“Judges are not like pigs, hunting for truffles buried in briefs.”).

sewer lines.” (Id. at 14 (cleaned up) (citing Doc. 118-10 at 18).) “Without Lee County’s acceptance

of the Subcontract Work, the sewer system could never be placed into service . . . .” (Id.)

APTIM draws parallels to Developers Surety & Indemnity Co. v. Archer Western

Contractors, LLC, where the court granted summary judgment in favor of a contractor which had

exercised its sole discretion in terminating a subcontractor, consistent with the subcontract terms.

(Id. at 14–15 (citing Archer, 2018 WL 2100032, at *11).) In that case, the court determined that

there was no genuine issue whether the contractor acted in good faith, in part because of the

“numerous documented complaints” as well as a Registered Landscape Architect Report

concerning the subcontractor’s deficient work. (Id. (quoting Archer, 2018 WL 2100032, at *12).)

APTIM observes that, here, Timberline’s performance was likewise defective. (Id. at 15–16.)

Thus, APTIM contends, it “properly exercised its sole discretion in terminating the Subcontract.”

(Id. at 16.) It emphasizes that it gave Timberline multiple opportunities to cure. (See id. at 16–17;

see also id. at 17–18 (citing, inter alia, Doc. 118-12 at 2–3; Doc. 118-7 at 11–15) (adding that

there were multiple “on-site discussions about Timberline’s failures” and that Timberline was “on

site when its noted deficiencies occurred”).)

2. Unsupervised, Unskilled, Unsafe Work

Second, APTIM argues that, despite Timberline’s representations that it was “fully skilled

and experienced ‘in all work necessary to successfully complete the Subcontract Work,’ including

supervision,” “no one at Timberline had operational control of the Subcontract Work.” (Id. at 21–

22 (emphasis omitted) (citing Doc. 118-4 at 50).) Further, “most of Timberline’s subcontractors

for this project were not skilled laborers.” (Id. at 23 (citing Doc. 118-5 at 20–21).) APTIM repeats

that the USACE suggested that “lack of qualified personnel” was a reason for the “significant

deficiencies” with the sewer system. (Id. at 22 (quoting Doc. 118-7 at 9).) It adds that Timberline

was required to supply personnel under the Timberline Subcontract. (Id. (citing Doc. 118-4 at 39).)

Further, APTIM says, Timberline performed unsafe work, despite the Timberline

Subcontract’s requirement that Timberline “take reasonable safety precautions with respect to the

performance of the Subcontract Work.” (Id. at 23 (citing Doc. 118-4 at 50).) Specifically, one

Timberline employee “failed to adhere to the warnings inside the cab of an excavator and broke

the glass with the attached bucket.” (Id. (citing Doc. 118-8 at 9–11).) Another “was operating an

excavator and hit two sewer laterals, requiring rework.” (Id. (citing, inter alia, Doc. 118-5 at 38).)

And a third “was removed [from the Project] for hot fueling a water pump.” (Id. (citing Doc. 118-

8 at 11, 13, 55).) APTIM contends that “each instance of unsafe work . . . was . . . a good[-]faith

reason for termination.” (Id.) It reiterates that the USACE frequently complained about

Timberline’s performance. (Id. at 24 (citing, inter alia, Doc. 118-14 at 3–4).)

3. Failure to Procure Bond

Third, APTIM argues that Timberline failed to procure a payment and performance bond,

despite being required to do so and despite “includ[ing] pricing for a bond in its proposal” to

APTIM, as well as in an invoice dated May 15, 2023. (Id. at 24–25 (citing Doc. 118-5 at 10, 702–

05).) According to APTIM, “the final specifications for the project required a performance bond.”

(Id. at 25 (citing Doc. 118-5 at 16–17, 338).) On June 23, 2023, APTIM demanded that Timberline

“furnish the Payment and Performance bond or a letter of credit for the full contract value by June

24, 2023, or be held in default.” (Id. (citing Doc. 118-7 at 190–91).) “Timberline presented no such

bond and no credit for same.” (Id.) APTIM claims that Timberline’s failure here was “another

contractually sound reason for termination.” (Id. (citing Logan & Clark, Inc. v. Adaptable Dev.,

Inc., 450 So. 2d 1189, 1190 (Fla. 4th DCA 1984) (per curiam)).)

B. Timberline’s Opposition (Doc. 134)

Timberline counters that, because the termination of a contract is a “drastic action,” courts

“require strict compliance with the terms of the relevant contract and that the terminating party

first provide” adequate notice and an opportunity to cure. (Doc. 134 at 1.) Timberline denies that

APTIM can show material breach, adequate notice, and an opportunity to cure. (Id. at 1.)

“Termination would be improper because Timberline promptly began to repair each instance of

non-conf[o]rming work once made aware.” (Id.) Timberline also contends that APTIM is

responsible for some of the defective work, both by doing such work itself and by refusing to give

Timberline additional time for performance. (Id. at 1–2.) According to Timberline, termination for

unsafe work was improper “because APTIM never stated [that] it [was] terminat[ing] Timberline

for safety.” (Id. at 2.) Likewise, termination for failure to procure a bond was improper “because

the subcontract did not require Timberline to provide a bond until requested.” (Id.)

Timberline reiterates that termination for cause is a “‘drastic sanction’ which should be

imposed (or sustained) only for good grounds and on ‘solid evidence.’” (Id. at 8 (quoting CJP

Contractors, Inc. v. United States, 45 Fed. Cl. 343, 371 (1999)); see also id. at 8–9 (citing 7 Bruner

& O’Connor on Construction Law § 18:39 (2024) (citations omitted)).) Thus, “even when a

contract does not explicitly require notice and an opportunity to cure, courts imply the requirement

as a matter of law for construction contracts.” (Id. at 9 (citing Centerplan Constr. Co., LLC v. City

of Hartford, 343 Conn. 368, 412 (2022); 5 Bruner & O’Connor on Construction Law § 18:15

(2014)); see also id. (citing MV Lady B, LLC v. Rolly Marine Serv. Co., No. 23-61769, 2024 WL

4881034, at *3–4 (S.D. Fla. Oct. 9, 2024)).) APTIM must therefore prove: (1) material breach,

(2) “APTIM’s lack of prior breach,” (3) APTIM’s good faith, (4) adequate notice, and (5) a

reasonable opportunity to cure. (Id. at 9–10.)

1. “Sole Discretion”

First, Timberline disagrees that the Timberline Subcontract gave APTIM “sole discretion”

to terminate Timberline for the reasons given and argues that “there is at least a question of fact as

to Timberline’s alleged default.” (Id. at 7–8; see also id. at 10.) In Timberline’s view, the relevant

subcontract provision is “clear as mud.” (Id. at 10.) But simultaneously, Timberline insists that the

“sole discretion” language modifies “only the first item in the list.” (Id.) Accordingly, APTIM

could, in its sole discretion, determine that Timberline abandoned “any or all Subcontract Work”

but not, e.g., that Timberline “perform[ed] Subcontract Work not in accordance with the terms of

the Subcontract.” (Id. at 11.) Timberline contends that this interpretation of the provision “is

supported by the basic rules of contractual interpretation,” explaining that, under the “proximity

rule,” “modifiers generally attach to the nearest reasonable word or phrase.” (Id. (citing Bryan A.

Garner, Garner’s Modern English Usage 597 (4th ed. 2016)).) Timberline claims that “[t]here is

no grammatical signal (e.g., a colon) extending the modifier to the entire series.” (Id. at 11–12.)

Rather, the modifier “in [APTIM’s] sole discretion” is “embedded within the first ‘if’ condition.”

(Id. at 11.)

Timberline gives additional reasons for its reading of the relevant provision. “Under

parallelism rules, modifiers do not automatically ‘float’ across coordinate clauses unless repeated

or clearly scoped.” (Id. at 12 (quoting Garner, Garner’s Modern English Usage, supra, at 670–71)

(citing Bryan A. Garner, The Redbook: A Manual on Legal Style § 10.50(b) (3d ed. 2013)).) And

commas set off the “sole discretion” language, “mak[ing] it a parenthetical, [thereby] limiting its

reach to its immediate clause.” (Id. (citing Garner, The Redbook, supra, § 1.3).) At a minimum,

Timberline says, the provision is ambiguous, in which case it must be construed against the drafter

(i.e., APTIM). (Id. (citing First Fin. N.W., Inc. v. Laver, 410 So. 3d 1, 3 (Fla. 4th DCA 2025)).) It

therefore reiterates that “APTIM only had ‘sole discretion’ to determine whether Timberline

abandoned, not whether it was in default for any other reason.” (Id.)

2. Notice & Opportunity to Cure

Next, Timberline explains that the implied covenant of good faith and fair dealing “is a

‘gap-filling default rule’ which is ‘usually raised when a question is not resolved by the terms of

the contract or when one party has the power to make a discretionary decision without defined

standards.’” (Id. at 13 (quoting Publix Super Mkts., Inc. v. Wilder Corp. of Del., 876 So. 2d 652,

654 (Fla. 2d DCA 2004)).) It “cannot be used to vary the unambiguous terms of a written contract.”

(Id. (quoting Avatar Dev. Corp. v. De Pani Constr., Inc., 834 So. 2d 873, 876 (Fla. 4th DCA

2002)).) Thus, Timberline argues, “all objective requirements still apply,” meaning that APTIM

must still “show notice, opportunity to cure, and lack of prior breach.” (Id. (citing 7 Bruner &

O’Connor on Construction Law § 18:39 (2024)).)

A cure notice must, according to Timberline, “fairly appraise the breaching party of the

specific breaches considered to warrant termination.” (Id. (quoting 7 Bruner & O’Connor on

Construction Law § 18:41 (2024)).) “[I]nforming the other party of an issue, without indication

that the non-breaching party is considering termination, is insufficient.” (Id. at 14 (citing Hannon

Elec. Co. v. United States, 31 Fed. Cl. 135, 148 (1994), aff’d, 52 F.3d 343 (Fed. Cir. 1995);

Eddystone Borough v. Peter V. Pirozzi Gen. Contracting, LLC, No. 13-1470, 2015 WL 1542284,

at *8 (E.D. Pa. Apr. 7, 2015)).)

3. Performance & Bond Procurement

Timberline contends that APTIM could not have properly or in good faith terminated

Timberline for defective work “because Timberline promptly began to repair each and every

instance of improper work of which it had knowledge.” (Id.) According to Timberline, APTIM

must show not only that Timberline’s work was defective but also that, in contravention of Section

11 of the Timberline Subcontract, Timberline failed to take remedial action within the appropriate

timeframe. (Id. at 15.) Timberline avers that, in all cases, it timely took such action. (Id. (citing,

inter alia, Doc. 136-32 at 9–18).) It also asserts that it was “actively working on repairs” to the

sewer system but was terminated—without notice or an opportunity to cure—before those repairs

could be completed. (Id. at 15–16 (citing Doc. 136-32 at 31; Doc. 136-39 at 6).)

In addition, Timberline argues that APTIM has not established that Timberline was

responsible for all defective work, noting that APTIM and Brice both sent employees to

supplement Timberline’s work, including on the sewer system. (Id. at 16 (citing, inter alia, Doc.

136-32 at 7–8); see also id. at 16–17.) Specifically, Timberline says, APTIM and Brice employees

“installed the entirety of the sewer mains except one portion.” (Id. at 16 (citing, inter alia, Doc.

136-33 at 3–4).) Terminating the Timberline Subcontract “for defective work performed by

APTIM’s own employees cannot be a proper termination []or an exercise in good faith.” (Id.)

Finally, Timberline blames APTIM for “failing to provide Timberline additional time” to perform,

which “contributed to quality issues” by forcing Timberline to “stack[]” tasks rather than to

complete them “in a linear sequence.” (Id. at 17 & n.1 (citing Doc. 136-33 at 12–13, 16–17, 18–

20; Doc. 136-28 at 1–2).) Timberline contends that APTIM’s failure was a breach of contract. (Id.)

Timberline further argues that APTIM has “take[n] [the] USACE’s complaint regarding

the ‘lack of proper equipment’ and ‘lack of qualified personnel’ out of context.” (Id. at 17 (citing

Doc. 118-2 at 22).) According to Timberline, the USACE’s May 29 letter pertained to failures of

quality control, for which APTIM was responsible. (Id. (citing Doc. 118-2 at 22; Doc. 136-32 at

3).) Timberline avers that it had proper equipment on-site, (id. (citing, inter alia, Doc. 136-33 at

4–7)), and that any issues with equipment and personnel were a consequence of the “compression

of the schedule,” (id. (citing Doc. 136-33 at 16–20)). Lastly, Timberline claims that it had

“[m]ultiple competent supervisors” on-site. (Id. at 17–18 (citing, inter alia, Doc. 136-34 at 3–7).)

Timberline denies that “meeting minutes, health and safety reports, and daily reports”

constituted notice, because none of them indicated that “APTIM was considering terminating

Timberline for the issues being raised.” (Id. at 18 (citing 7 Bruner & O’Connor on Construction

Law § 18:41 (2024)); see also id. at 18–19 (rehashing arguments).) And in any event, Timberline

says, it “cured every instance of defective work of which it was aware.” (Id.) Thus, there are

“questions of fact as to whether APTIM properly and in good faith terminated Timberline for

defective work.” (Id. at 19.) Relatedly, Timberline argues that, prior to this litigation, APTIM did

not “use Timberline’s safety record as a reason for termination.” (Id. (citing, inter alia, Docs. 136-

12, 136-19, 136-23).) Consequently, “termination for that reason would be improper.” (Id.) But

regardless, the instances of unsafe work identified by APTIM were “[i]solated” and therefore “can

hardly be considered a ‘persistent’ pattern . . . sufficient to constitute a material breach.” (Id. at 20

(citing 7 Bruner & O’Connor on Construction Law § 18:28 (2024)).)

As for its failure to procure a bond, Timberline argues that (1) APTIM “did not terminate

Timberline because it failed to provide a bond,” and (2) “the Subcontract only required Timberline

to provide a bond upon request.” (Id. at 20–21 (citing Doc. 136-32 at 27–28, 30).) During its

corporate deposition, APTIM did not identify failure to procure a bond as one of the reasons for

terminating Timberline. (Id. at 21 (citing Doc. 136-32 at 27–28, 30).) And during performance of

the Timberline Subcontract, when APTIM at last requested a bond from Timberline, Timberline

promptly reached out to its surety. (Id. (citing Doc. 136-22 at 1).) The surety was willing to furnish

a bond once APTIM provided a letter or e-mail stating that “a bond was required and was

overlooked by the parties” and that “the job [wa]s on schedule and there [we]re no disputes.” (Id.

at 22 (quoting Doc. 136-22 at 1).) Thus, when APTIM demanded that Timberline procure a bond

in its June 23 “Notification of Breach of Contract,” APTIM “knew that Timberline needed

documentation from APTIM to do so.” (Id.) Timberline therefore disputes that this demand for a

bond was made in good faith. (Id.)

4. APTIM’s Lack of Good Faith

Finally, Timberline argues that APTIM did not terminate the Timberline Subcontract in

good faith. (Id. at 23.) Timberline acknowledges that, prior to the “Notice of Termination for

Default,” APTIM provided Timberline with multiple “Letters of Concern / Cure Notices.” (Id.

(citing Doc. 136-25).) Timberline also admits that such correspondence addressed delays, as well

as defective work. (Id. at 23–24.) But Timberline emphasizes that “it was not until [APTIM] sent

the ‘Notification of Breach of Contract’ that [it] formally held Timberline in default.” (Id. at 24.)

“[A]nd even then,” Timberline says, “the default was limited to schedule and delays, which is [sic]

now absent from APTIM’s arguments.” (Id. (citing Doc. 136-32 at 19–24).)

Timberline posits that the reason why APTIM has not cited delay as a basis for termination

is that “BAJV requested and obtained 83 . . . additional days from [the] USACE for the exact same

issues [about which] Timberline complained.” (Id. (citing, inter alia, Doc. 136-29; Doc. 136-30;

Doc. 136-38 at 5–13).) But simultaneously, Timberline speculates that “delay was not even the

true motive for APTIM’s wrongful termination [of Timberline].” (Id. (emphasis omitted).) Instead,

Timberline suggests that APTIM “use[d] Timberline as a scapegoat . . . after [APTIM’s] own poor

management of the project resulted in six written complaints.” (Id. at 24–25; see also id. at 25

(citing Doc. 136-27).) It directs the Court to an e-mail from BAJV’s responsible manager:

At this point, we [BAJV] had our free pass to remove Timberline and make good,

but that card is now 3/4 out the window. The next to come is going to be a full

deficiency in the [quality control] on the project as there are no more

[subcontractors] to pass blame on, plus in my opinion we didn’t respond strong

enough, especially with all the continued repairs that are showing up. Complete

[quality control] failure and incompetence is my guess on the big bomb that the

hatches are open to launch any day. . . . [F]rom my perspective I do not see that the

[quality control] was in place to prevent any of these massive failures.

(Id. (quoting Doc. 136-27 at 1); see also id. (quoting Doc. 136-26 at 1) (“[W]e are about to have

used up our one and only chance at redemption on this project . . . .” (emphasis omitted)).)

C. APTIM’s Reply (Doc. 139)

APTIM reiterates that the only question before the Court is “whether APTIM exercised its

sole discretion in good faith.” (Doc. 139 at 1.) It notes that Timberline “relies heavily on secondary

sources while ignoring case law from Florida directly on point.” (Id. at 1 & n.2 (citing Archer,

2018 WL 2100032).) Specifically, APTIM explains that, in Archer, the court granted summary

judgment over an opposition which relied on a “hypertechnical view of ‘notice’” and which alleged

that the general contractor (i.e., the movant) had “breached the Subcontract on numerous

occasions.” (Id. at 2 (citing Archer, 2018 WL 2100032, at *7, *12).) “[F]inding ‘numerous

documented complaints’ against the subcontractor,” the Archer court “was ‘satisfied’ that the

general contractor did not violate its duty of good faith.” (Id. (citing Archer, 2018 WL 2100032,

at *12).) APTIM urges that Archer “clearly supports granting” the Partial MSJ here. (Id.)

In addition, APTIM says, Timberline’s arguments merely distract from the issue at hand.

(Id.) “Timberline has failed to show that APTIM acted in bad faith, capriciously[,] or in

contravention of the parties’ reasonable expectations.” (Id. at 2–3 (citing Mount Sinai Med. Ctr. of

Greater Miami, Inc. v. Heidrick & Struggles, Inc., 329 F. Supp. 2d 1309, 1313 (S.D. Fla. 2004),

aff’d, 188 F. App’x 966 (11th Cir. 2006)).) Put another way, Timberline has not shown that “no

reasonable party would have made the same discretionary decision” as APTIM. (Id. (emphasis

omitted) (quoting Ernie Haire Ford, 260 F.3d at 1291).)

APTIM observes that the “sole discretion” language in Section 25 of the Timberline

Subcontract precedes items in a series (i.e., a list) and therefore contends that the language logically

concerns the entire series. (Id. at 3 (citing Garner, The Redbook, supra, at § 1.18).) According to

APTIM, case law supports this reading. (Id. at 4 (citing United States v. Marshall, 808 F. App’x

11, 14 (2d Cir. 2020) (summary order); United States v. Loyd, 886 F.3d 686, 688 (8th Cir. 2018);

Philadelphia Indem. Ins. Co. v. Bellin Mem’l Hosp., 126 F.4th 532, 539 (7th Cir. 2025)).) “The

series-qualifier canon ‘requires a modifier to apply to all items in a series when such an application

would represent a natural construction.’” (Id. (quoting Loyd, 886 F.3d at 688).) APTIM argues that

applying the “sole discretion” language to just the first item in the series “results in a nonsensical,

unharmonious interpretation depriving the contract of its natural meaning.” (Id. (citing, inter alia,

Kipp v. Kipp, 844 So. 2d 691, 693 (Fla. 4th DCA 2003)).)

Next, APTIM denies that the implied covenant of good faith and fair dealing required it

“to provide Timberline endless chances to cure its defective work.” (Id. at 5.) The Timberline

Subcontract was clear that “Subcontract Work not conforming to the[] requirements [of the

subcontract] w[ould] be considered defective.” (Id. (quoting Doc. 118-4 at 50).) And “[i]t is

undisputed that there were continuous sewer leaks [which] Timberline failed to cure, and that the

sewer lines failed multiple pressure tests.” (Id. (citing Doc. 118-10 at 13).) Consequently, the Lee

County inspector refused to accept Timberline’s work. (Id. at 6 (citing Doc. 118-2 at 13).) APTIM

also notes that the “Notification of Breach of Contract” specifically mentioned “schedule,

performance, and . . . deficiencies in [Timberline’s] subcontract work.” (Id. (quoting Doc. 136-32

at 21).) APTIM adds that, because the sewer leaks were “continued defects,” Timberline’s

arguments about lack of notice and an opportunity to cure are meritless. (Id. at 5 n.20.)

According to APTIM, it is irrelevant whether APTIM performed defective work on-site.

(Id. at 6.) Under the Timberline Subcontract, Timberline was responsible for the work on the sewer

system. (Id. at 6–7 (referencing Doc. 118-4 at 45).) APTIM could supplement Timberline’s

workforce, “while Timberline retain[ed] full authority over the execution of its contractual

responsibilities.” (Id. at 7.) Indeed, Timberline’s superintendent was “in charge when defective

work was performed.” (Id. (citing Doc. 118-13 at 21–22).) Further, it was Timberline which

“performed the deficient work that Lee County would not accept.” (Id. at 6–7 (citing Doc. 118-5

at 32).) And it was Timberline which failed “to fix the leaks in the sewer system” from June 21–

24. (Id. at 7 (citing Doc. 118-7 at 47–193).)

Penultimately, APTIM observes that the Timberline Subcontract provided for remediation

of defects “within 24 hours of discovering defective work or after receiving notice.” (Id. at 7–8

(emphasis added) (presumably, intending to quote Doc. 118-4 at 50).) Thus, APTIM says,

“‘discovery’ start[ed] the period of time in which an opportunity to cure [wa]s provided.” (Id. at

8.) This interpretation is easy to square with the rest of the Timberline Subcontract, which did not

require that notice be in writing. (Id.) But in any event “APTIM issued two formal cure notices,

each allowing two weeks for Timberline to address the identified defects.” (Id. (citing Doc. 118-7

at 1–2, 19).) And Timberline “readily admits” that it received formal notices from APTIM. (Id. at

7 (citing Doc. 134 at 5).)

APTIM argues that the Timberline Subcontract “did not provide any requirements for a

‘proper’ notice and opportunity to cure.” (Id. at 8.) But the June 8 cure notice was in writing,

identified itself as a cure notice, specified what Timberline needed to address, and warned that

“termination for default was now on the table.” (Id. at 8–9 (citing Doc. 118-7 at 19–20).) APTIM

contests Timberline’s invocation and use of an implied duty of notice and an opportunity to cure:

“To suggest that APTIM could only rely on defective work that Timberline did not repair [as a

basis for termination] misses the point. It was the repeated discovery of defects that caused APTIM

to put termination on the table in its June 8 notice and provided APTIM a basis to terminate the

Subcontract on June 25.” (Id. at 9.)

APTIM makes a number of observations related to the above. First, “it is not unusual for a

construction contract to provide no pre-termination notice and no opportunity to cure.” (Id. at 8

(emphasis omitted) (citing Gibson v. Barron Dev. Corp., 2018 Fla. Cir. LEXIS 12094, at *4 (Fla.

11th Cir. Ct. Mar. 12, 2018)).) Second, where the Subcontract is silent, “federal courts have found

that meeting minutes, phone calls, and verbal communication may constitute sufficient notice.”

(Id. at 9 (citing, inter alia, Parkcrest Builders, LLC v. Hous. Auth. of New Orleans, No. 15-1533,

2017 WL 3394033 (E.D. La. Aug. 8, 2017)).) Third, “Timberline was on site daily and had

numerous conversations with APTIM, [the] USACE, and Lee County regarding the [sewer system]

issues.” (Id.) And fourth, “Timberline was actively discovering leaks through continued failed

pressure tests.” (Id. (citing Doc. 118-8 at 59, 62, 65).)

Finally, APTIM emphasizes that “Timberline was ultimately terminated for its defective

work.” (Id. at 10.) Whether Timberline should have been allowed additional time—and the fact

that APTIM “never gave Timberline any additional time”—are not issues before the Court. (Id.)

IV. DISCUSSION

A. Extent of APTIM’s “Sole Discretion”

1. Interpretation of Contracts, Generally

“The interpretation of a contract is a legal conclusion.” Otis, 589 F. App’x at 958 (citing

Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1261 (11th Cir. 2003)). “[C]ontractual

language is ambiguous only if it is susceptible to more than one reasonable interpretation.”

Seritage SRC Finance, LLC v. Town Ctr. at Boca Raton Tr., 397 So. 3d 44, 46 (Fla. 4th DCA

2024) (emphasis in original) (quoting BKD Twenty-One Mgmt. Co. v. Delsordo, 127 So. 3d 527,

530 (Fla. 4th DCA 2012)). Ambiguities must be “‘construed against the drafter’ of the [contract].”

First Fin. N.W., 410 So. 3d at 3 (quoting City of Homestead v. Johnson, 760 So. 2d 80, 84 (Fla.

2000)). But where one interpretation is sound and another “would be absurd,” the sound

interpretation applies. Seritage, 397 So. 3d at 46–47 (quoting BKD Twenty-One, 127 So. 3d at

530); accord Kipp, 844 So. 2d at 693 (citing Katz v. Katz, 666 So. 2d 1025, 1028 (Fla. 4th DCA

1996)) (“[A] court must construe a contract in a manner that accords with reason and probability

. . . and [must] avoid an absurd construction.”).

Similarly, courts must select an interpretation that gives force to all contractual provisions

“over an alternative interpretation that relies on negation of some of the . . . provisions.” Pierce

Law Grp., LLP v. Factor, 408 So. 3d 148, 151 (Fla. 3d DCA 2025) (quoting Siegle v. Progressive

Consumers Ins. Co., 819 So. 2d 732, 739 (Fla. 2002)). In doing so, courts must ordinarily “give

words and phrases . . . the[ir] natural meaning[s] or th[ose] meaning[s] most commonly

understood” given the context. Rupp Hotel Operating Co. v. Donn, 29 So. 2d 441, 445 (Fla. 1947);

accord Kipp, 844 So. 2d at 693 (citing McIlmoil v. McIlmoil, 784 So. 2d 557, 561 (Fla. 1st DCA

2001)). Ultimately, the court’s role is to enforce the contract, not to “rewrite [it] to make it more

reasonable for one of the parties.” KRG Oldsmar Project Co., LLC v. CWI, Inc., 358 So. 3d 464,

468 (Fla. 2d DCA 2023) (quoting Snyder v. Fla. Prepaid Coll. Bd., 269 So. 3d 586, 592 (Fla. 1st

DCA 2019)); accord Ernie Haire Ford, 260 F.3d at 1290 (“[I]t is well settled that ‘when the terms

of a voluntary contract are clear and unambiguous, . . . the contracting parties are bound by those

terms, and a court is powerless to rewrite the contract to make it more reasonable or advantageous

for one of the contracting parties.’” (quoting Emergency Assocs. of Tampa, P.A. v. Sassano, 664

So. 2d 1000, 1003 (Fla. 2d DCA 1995))).

2. Series-Qualifier Canon

“Typically, ‘a modifier at the beginning . . . of a series of terms modifies all terms.’”

Marshall, 808 F. App’x at 14 (quoting United States v. Lockhart, 749 F.3d 148, 152 (2d Cir. 2014),

aff’d, 577 U.S. 347 (2016)); accord Loyd, 886 F.3d at 687–88 (citing Lockhart, 577 U.S. at 355)

(explaining that the series-qualifier canon “requires a modifier to apply to all items when such an

application would represent a natural construction”); see also Facebook, Inc. v. Duguid, 592 U.S.

395, 403 (2021) (“The [Supreme] Court often applies this interpretive rule, usually referred to as

the ‘series-qualifier canon.’”); cf. id. at 403–04 (“A qualifying phrase separated from antecedents

by a comma is evidence that the qualifier is supposed to apply to all the antecedents instead of

only to the immediately preceding one.” (cleaned up) (quoting W. Eskridge, Interpreting Law: A

Primer on How To Read Statutes and the Constitution 67–68 (2018))).

In Philadelphia Indemnity Insurance Co. v. Bellin Memorial Hospital, for example, the

relevant insurance policy defined a “wrongful act” as “a negligent act, error, or omission.” 126

F.4th at 539. The Seventh Circuit explained that the definition “follows a familiar structure of a

modifier preceding a list of nouns.” Id. at 540. “Grammar rules dictate that when ‘a

straightforward, parallel construction that involves all nouns or verbs in a series’ is preceded by a

modifier, that modifier ‘normally applies to the entire series.’” Id. (quoting Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012)); accord Anhui

Powerguard Tech. Co., Ltd. v. DRE Health Corp., 95 F.4th 1146, 1149–50 (8th Cir. 2024) (citing

State v. Champagne, 561 S.W.3d 869, 873 (Mo. Ct. App. 2018)). “This interpretive rule, known

as the series-qualifier canon, generally provides the most natural reading of a sentence.”

Philadelphia Indem., 126 F.4th at 540; accord Facebook, 592 U.S. at 403.

Likewise, the Eleventh Circuit and Florida courts have implicitly and explicitly applied the

series-qualifier canon when interpreting contracts. See, e.g., ECB USA, Inc. v. Chubb Ins. Co. of

N.J., 113 F.4th 1312, 1322 (11th Cir. 2024) (“[The canon] reflects the unremarkable convention

that ‘[w]hen several words are followed by a clause [that] [] is applicable as much to the first and

other words as to the last, the natural construction of the language demands that the clause be read

as applicable to all.’” (quoting Paroline v. United States, 572 U.S. 434, 447 (2014))); see also

Archer, 2018 WL 2100032, at *2, *11 (considering a conditional sentence similar to the one at

issue here); cf. Davis v. Verandah at Lake Grady Homeowners Ass’n, Inc., 354 So. 3d 1140, 1144–

45 (Fla. 2d DCA 2023) (“Since ‘of record’ appears in the middle of the list, the series[-]qualifier

canon does not apply here.”). Ernie Haire Ford, Inc. v. Ford Motor Co., for example, concerned

a “dealership agreement” which provided: “[Appellee] reserves the right to determine, from time

to time, in its best judgment, the numbers, locations and sizes of authorized dealers necessary for

proper and satisfactory sales and service representation . . . .” 260 F.3d at 1289 (emphasis in

original). The Eleventh Circuit agreed with the district court that “[u]nder the [contract], it [wa]s

[Appellee’s] own judgment that control[led] . . . in determining the relocation of its dealerships.”

Id. at 1291 (second emphasis added). In other words, both courts applied the modifier “in its best

judgment” to the second noun in the series (i.e., “locations”). See id. at 1289, 1291.

3. Analysis

Preliminarily, the Court considers the extent of the application of the “sole discretion”

language appearing in Section 25 of the Timberline Subcontract. (See Doc. 118-4 at 58.) Again,

the relevant portion of that section reads:

If, in [APTIM’s] sole discretion, any or all Subcontract Work to be performed under