Southern Coal Corporation v. Drummond Coal Sales, Inc.

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 1 of 25

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14560

____________________

SOUTHERN COAL CORPORATION,

JAMES C. JUSTICE, II,

Plaintiff-Counter Defendants-Appellee-Cross Appellants,

versus

DRUMMOND COAL SALES, INC.,

Defendant-Counter Claimant-Appellant-Cross Appellee.

____________________

Appeals from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:17-cv-01104-WMR

____________________

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 2 of 25

2 Opinion of the Court 20-14560

Before WILSON, LAGOA, and ED CARNES, Circuit Judges.

WILSON, Circuit Judge:

Drummond Coal Sales, Inc.’s (Drummond) motion to

amend this court’s judgment is GRANTED. We vacate our prior

opinion in this appeal, Southern Coal Corporation v. Drummond

Coal Sales, Inc., 25 F.4th 864 (11th Cir. 2022), and substitute for it

this one. Accordingly, Southern Coal Corporation’s (Southern

Coal) petition for rehearing en banc of the now-vacated opinion is

DENIED AS MOOT.

This appeal concerns a pricing dispute over a contract to

transfer and store coal between plaintiff Southern Coal and defend-

ant Drummond. The district court found Southern Coal breached

the contract and awarded a judgment in favor of Drummond in the

amount of $6,860,000 and $1,473,699.87 in prejudgment interest.

Drummond appeals this judgment on the ground that the district

court erred in finding a price escalation clause in the contract to be

unenforceable. If this price escalation were enforceable, then

Drummond would be entitled to even more damages under the

contract for Southern Coal’s breach. For its part, Southern Coal

cross-appeals the district court’s judgment, claiming that Drum-

mond’s actions excused Southern Coal’s obligation to pay Drum-

mond under the contract. Both parties challenge the district’s

court determination not to award attorneys’ fees to either party.

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 3 of 25

20-14560 Opinion of the Court 3

We affirm the district court’s judgment against Southern

Coal in the amount of $6,860,000 plus $1,473,699.87 in prejudg-

ment interest for a total of $8,333,699.87. The district correctly

found that Southern Coal was not excused from performing under

the contract. Further, the district court correctly found the price

escalation clause unenforceable. However, we reverse on the issue

of attorneys’ fees and remand to the district court to award a rea-

sonable sum to the prevailing party, Drummond.

I. BACKGROUND

The disputed contract in this case is called the Bulk Coal

Transfer and Storage Agreement (Agreement). Southern Coal en-

tered the four-year Agreement with Drummond in October 2013.

Under the Agreement, Drummond would sublease port capacity

located in Newport News, Virginia to Southern Coal. In exchange

for Drummond’s services under the Agreement, Southern Coal

agreed to transfer through Drummond’s port a minimum of 2 mil-

lion metric tons of coal per year and pay Drummond a “minimum

monthly Throughput Fee of $1,000,000.” Southern Coal’s then-

president, James C. Justice II, contemporaneously executed a guar-

antee of Southern Coal’s obligations under the Agreement.

Central to this dispute, § 6.14 of the Agreement provides

that the base amount for the Throughput Fee would be adjusted

upward based on increases in the “Peak Downs metallurgical

benchmark price.” “Peak Downs” refers to a mine in Australia

owned by Australian mining company BHP Billiton (BHP). BHP

is one of the leading coal exporters in Australia and produces high-

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 4 of 25

4 Opinion of the Court 20-14560

quality metallurgical coal. Metallurgical coal, often referred to as

coking coal, is a primary component of steel manufacturing. As

used here, “benchmark” refers to a negotiated price between min-

ing companies and Asian steelmakers. Beginning in the 1980s, BHP

would negotiate a yearly benchmark price for its high-quality met-

allurgical coal with Japanese steelmakers. This benchmark was

published in industry newsletters and the price would serve as the

market price of metallurgical coal for the year and other coal com-

panies would use the benchmark in negotiating their own con-

tracts.

For more than twenty years, BHP set the yearly benchmark

price for metallurgical coal. Around 2008, BHP announced that it

wanted to transition from a yearly negotiated benchmark price to-

ward a quarterly, monthly, and eventually, a daily negotiated price.

The last annually negotiated benchmark price was settled in 2009

and by the second quarter of 2010, the industry began using a quar-

terly benchmark price. When the parties entered the Agreement

in 2013, the industry was still using a quarterly benchmark, rou-

tinely negotiated and set by BHP. However, by the fourth quarter

of 2016, BHP moved away entirely from quarterly pricing, which

resulted in the published quarterly benchmark price being set by

other Australian coal producers.

Starting in the fourth quarter of 2013, Drummond began in-

voicing Southern Coal for the monthly Throughput Fee of $1 mil-

lion. Initially, Southern Coal paid these invoices without issue.

During this time, the price of metallurgical coal was relatively low

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 5 of 25

20-14560 Opinion of the Court 5

and the price escalation clause of the Agreement had consequently

not been triggered. In the fourth quarter of 2016, however, the

quarterly benchmark price of metallurgical coal, set by a company

other than BHP, rose to $200 per metric ton. Drummond consid-

ered this price increase to trigger § 6.14 of the Agreement. Accord-

ingly, Drummond sent Southern Coal an invoice on October 25,

2016 for $1,380,000, a figure which reflected a $380,000 increase in

the minimum monthly Throughput Fee. Drummond invoiced

Southern Coal for the same amount for November and December

2016.

In the first quarter of 2017, the quarterly benchmark price

for metallurgical coal—as reported in industry publications—rose

again to $285 per metric ton. Accordingly, Drummond sent South-

ern Coal an invoice on January 3, 2017, for $1,965,000, which in-

cluded a $965,000 increase in the minimum monthly Throughput

Fee. Southern Coal paid $1,000,000 of the invoice on February 6,

2017, but it refused to pay the remaining $965,000. After that pay-

ment, Southern Coal refused to pay any further invoices.

Southern Coal contested these invoices because it claimed

that the “Peak Downs” benchmark to which § 6.14 of the Agree-

ment referred ceased to exist as BHP was no longer setting the

quarterly benchmark price. Therefore, there was no longer a

mechanism for price adjustments under § 6.14 of the Agreement.

Southern Coal sent a letter to Drummond on March 9, 2017, de-

manding adequate assurances that Drummond would not charge

any increase to the Throughput Fee and would only charge the

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 6 of 25

6 Opinion of the Court 20-14560

minimum $1 million. Drummond sent a reply letter to Southern

Coal asserting its right to increase the Throughput Fee because §

6.14 still applied regardless of which company set the quarterly

benchmark, and that Southern Coal had no right to withhold pay-

ments.

Southern Coal sued Drummond and asserted claims for a

declaratory judgment and breach of contract. Drummond asserted

counterclaims against Southern Coal and Justice for declaratory

judgment, breach of contract, and breach of a corresponding guar-

antee. Both parties moved for summary judgment. The district

court found that § 6.14 of the Agreement was ambiguous and sent

the issue of the meaning of the term “Peak Downs metallurgical

benchmark price” to trial. However, the district court concluded

that Southern Coal was still liable for the minimum monthly

Throughput Fee of $1 million.

At a bench trial, the district court heard testimony from both

parties on the meaning of the ambiguous term. Ultimately, the

district court found that the term “Peak Downs metallurgical

benchmark price” was intended by the parties to be, specifically,

the quarterly price set by BHP for its coal that was mined from its

Peak Downs mine and sold to Japanese steelmakers. The district

court found the testimony of Dennis Steul, Drummond’s vice pres-

ident of sales and the primary negotiator of the terms of the Agree-

ment, to be the more credible and persuasive evidence of the par-

ties’ intent. Accordingly, the district concluded that § 6.14 became

unenforceable when BHP ceased setting the quarterly benchmark

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 7 of 25

20-14560 Opinion of the Court 7

price for metallurgical coal. However, because the Agreement

contained a savings clause, the district court determined that the

price escalation clause could be severed and the remainder of the

Agreement was valid. As a result, the district court granted judg-

ment in favor of Drummond in the amount of $6,860,000 against

Southern Coal and Justice.

Drummond raises three purported errors of the district

court on appeal: (1) evidence of industry usage establishes that §

6.14 is unambiguous and therefore extrinsic evidence of the parties’

intent should not have been admitted in interpreting the Agree-

ment; (2) instead of finding § 6.14 unenforceable, the Agreement

should have been equitably reformed to reflect the parties’ inten-

tions; and (3) attorneys’ fees should be awarded to Drummond as

provided for in the Agreement. On the other hand, Southern Coal

contends that the district court erred in not finding that Drum-

mond’s actions constituted anticipatory repudiation and material

breach of the Agreement. It also argues that the guarantee should

not be enforced against Justice.

II. DRUMMOND’S ISSUES ON APPEAL

A. Ambiguity of the Agreement

Drummond argues that the district court erroneously relied

on extrinsic evidence of the parties’ intent to interpret the Agree-

ment because evidence of industry usage establishes that the

Agreement is unambiguous. According to Drummond, the Agree-

ment is unambiguous based on evidence of industry usage that

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 8 of 25

8 Opinion of the Court 20-14560

demonstrates there is only one quarterly benchmark for the price

of metallurgical coal at any given time. To everyone in the indus-

try, the argument goes, the reference to the “Peak Downs metal-

lurgical benchmark price” refers unequivocally to the one and only

benchmark price.

The interpretation of a contract, including whether it is am-

biguous, is a question of law that we review de novo. Reynolds v.

Roberts, 202 F.3d 1303, 1313 (11th Cir. 2000). “Questions of fact

arise only when an ambiguous contract term forces the court to

turn to extrinsic evidence of the parties’ intent, such as precontract

negotiations, to interpret the disputed term.” Laws. Title Ins.

Corp. v. JDC (America) Corp., 52 F.3d 1575, 1580 (11th Cir. 1995).

If a contract is ambiguous “and the trial court must look to extrinsic

evidence to determine the parties’ intent, we review its findings of

fact . . . as to the parties’ intent for clear error.” Reynolds, 202 F.3d

at 1313.

The parties agree that New York law applies to this dispute.

Under New York law, “[i]n determining the obligations of parties

to a contract, courts will first look to the express contract language

used to give effect to the intention of the parties, and where the

language of a contract is clear and unambiguous, the court will con-

strue and discern that intent from the document itself as a matter

of law.” Williams v. Vill. of Endicott, 936 N.Y.S.2d 759, 761 (N.Y.

App. Div. 2012). “Evidence outside the four corners of the docu-

ment as to what was really intended but unstated or misstated is

generally inadmissible to add to or vary the writing.” W.W.W.

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 9 of 25

20-14560 Opinion of the Court 9

Assocs., Inc. v. Giancontieri, 566 N.E.2d 639, 642 (N.Y. 1990). Ex-

trinsic evidence may be considered to determine the parties’ intent

if the contract is ambiguous. Fattorusso v. RJR Mechanical, Inc.,

16 N.Y.S.3d 844, 846 (N.Y. App. Div. 2015). But extrinsic evidence

may not be used to create ambiguity in a contract that is “complete

and clear and unambiguous upon its face.” W.W.W. Assocs., 566

N.E.2d at 642.

In the context of a specialized trade or business contract,

“[c]ontract terms are considered ambiguous if they are capable of

more than one meaning when viewed objectively by a reasonably

intelligent person who has examined the context of the entire inte-

grated agreement and who is cognizant of the customs, practices,

usages and terminology as generally understood in the particular

trade or business.” Lightfoot v. Union Carbide Corp., 110 F.3d 898,

906 (2d. Cir. 1997) (internal quotation marks omitted) (applying

New York law). Conversely, “contract language is not ambiguous

if it has a definite and precise meaning, unattended by danger of

misconception in the purport of the contract itself, and concerning

which there is no reasonable basis for a difference of opinion.”

Hugo Boss Fashions, Inc. v. Fed. Ins. Co., 252 F.3d 608, 617 (2d Cir.

2001) (alterations adopted) (applying New York law). However, it

is possible that “even where a contract does not define a particu-

lar—and potentially ambiguous—term, a body of state law or an

established custom fills in the gaps left by the drafters.” Hugo Boss,

252 F.3d at 617. “Custom” may also refer to industry usage of a

term. In fact, “[w]hen interpreting a state law contract . . . an

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 10 of 25

10 Opinion of the Court 20-14560

established definition provided by . . .industry usage will serve as

a default rule, and that definition will control unless the parties ex-

plicitly indicate, on the face of their agreement, that the term is to

have some other meaning.” Id. at 617–18. Accordingly, by looking

to evidence of industry usage, “a possible ambiguity may ulti-

mately be proven to be illusory.” Id. at 618.

As noted above, the threshold determination of whether a

contract is ambiguous is a question of law that we review de novo.

Reynolds, 202 F.3d at 1313. We conclude that the district court

made no legal error when it determined the Agreement to be am-

biguous. Contrary to Drummond’s argument, the district court

did consider evidence of industry usage of the term in ruling on

summary judgment. In its order, the court specifically noted that

although “coal industry publications referred to the agreed upon

quarterly price using various terms such as the ‘Peak Downs bench-

mark,’ the ‘Australian coking coal benchmark,’ or simply ‘the

benchmark,’ there is some evidence to show that it was understood

in the coal industry that the various terms denoted the same thing.”

Ordinarily, courts are bound to the four corners of the contract in

interpreting it, but there is an exception for evidence of industry

usage or custom, and this evidence may be considered in determin-

ing whether a contract is ambiguous. See Hugo Boss, 252 F.3d at

617–18. Here, the district court properly considered extrinsic evi-

dence of industry usage before deciding on ambiguity. However,

the district found that the Agreement, when read as a whole to de-

termine its purpose and intent, was ambiguous because both

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 11 of 25

20-14560 Opinion of the Court 11

parties had offered reasonable interpretations of the term. As a

contract is ambiguous if “capable of more than one meaning when

viewed objectively by a reasonably intelligent person,” we con-

clude that the district court made the proper legal determination

that the Agreement was ambiguous. Lightfoot, 110 F.3d at 906.

Once the district court determined that the Agreement was

ambiguous, it could properly hear extrinsic evidence as to the par-

ties’ intent at trial. Fattorusso, 16 N.Y.S.3d at 846. The district

court heard trial testimony from Dennis Steul, Drummond’s pri-

mary negotiator on the Agreement, and Steve Doyle, an industry

expert called by Drummond. Doyle’s testimony demonstrated

that there has always been only one benchmark in the metallurgi-

cal coal industry and that there were a variety of terms used to de-

scribe this benchmark. As factfinder, the district court simply

found the testimony of Steul to be more credible and persuasive.

Steul’s testimony corroborated the finding that the term in the

price escalation clause was intended by the parties to be, specifi-

cally, the quarterly price set by BHP for the coal from its Peak

Downs mine that was sold to Japanese steelmakers. Steul testified

that he always considered Peak Downs to be a reference to the

mine owned by BHP. The district court was entitled to credit that

testimony.

Even more convincing was Steul’s testimony that in a con-

tract with another customer, Drummond priced the contract based

on the price of coal from another specific mine besides the Peak

Downs mine. Furthermore, that contract contained language

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 12 of 25

12 Opinion of the Court 20-14560

stating that, if the price for that mine was unavailable, the parties

would mutually agree to an alternative quarterly price basis. In the

Agreement here, there was no language that gave the parties the

right to use a different quarterly price for coal. The Agreement

instead tied increases in price to the Peak Downs price, which Steul

conceded was a reference to the mine owned by BHP. When BHP

stopped setting a quarterly benchmark price, the district court con-

cluded that the price escalation clause in the Agreement then be-

came unenforceable.

When the district court considers extrinsic evidence of the

parties’ intent in interpreting an ambiguous contract, this presents

a question of fact that we review for clear error. Reynolds, 202 F.3d

at 1313. Here, the district court did not clearly err in crediting

Southern Coal’s position in interpreting the contract because the

parties’ testimony at trial and the facts of this case supported this

interpretation. When the parties entered the Agreement, BHP was

routinely setting a quarterly benchmark price—thus, the price es-

calation clause was tied to the Peak Downs benchmark. However,

during the course of the Agreement, BHP stopped this practice.

We therefore ask, if BHP is no longer setting a quarterly bench-

mark for its Peak Downs mine, then how can the price escalation

clause remain enforceable? Drummond argues that this is made

possible by changing the term “Peak Downs metallurgical bench-

mark price” to “the quarterly benchmark price as agreed by mining

companies and Asian steel producers and as published in industry

newsletters.” However, if that is what the parties intended, why

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 13 of 25

20-14560 Opinion of the Court 13

did the parties, who are sophisticated and familiar with the indus-

try, not write the Agreement to so read? Regardless, the correct

approach here was clear. When BHP stopped setting the quarterly

benchmark price, the Agreement became unenforceable. See In re

Licata, 908 N.Y.S.2d 441, 442 (N.Y. App. Div. 2010) (“[W]here a

contract’s material terms are not reasonably definite, the contract

is unenforceable.”). Accordingly, we conclude that the district

court made no legal error in finding the Agreement ambiguous and

further, its decision to find the price escalation clause unenforcea-

ble was not clearly erroneous.

B. Equitable Reformation of the Agreement

Next, Drummond argues that even if the contract is ambig-

uous, the Agreement should be reformed to reflect the parties’ in-

tentions. We disagree.

Under the equitable reformation doctrine, “courts of equity

will reform a written contract where, owing to mutual mistake, the

language used therein did not fully or accurately express the agree-

ment and intention of the parties.” Philippine Sugar Ests. Dev. Co.

v. Gov’t of Philippine Islands, 247 U.S. 385, 389 (1918) (emphasis

added).

Drummond argues that the mutual mistake here was that

the parties thought that BHP always set the quarterly benchmark

price, when in fact, prior to entering the Agreement, companies

other than BHP had set the quarterly benchmark price. However,

this does not appear to be an issue of a mutual mistake, but rather

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 14 of 25

14 Opinion of the Court 20-14560

a lack of due diligence by these sophisticated parties before enter-

ing the Agreement. See Thompson v. McQueeney, 868 N.Y.S.2d

443, 447 (N.Y. App. Div. 2008) (“[W]ith a minimum degree of due

diligence, defendants’ mistake . . . would have been readily appar-

ent.”). Furthermore, the district court determined that the intent

of the parties was that the price escalation clause was a specific ref-

erence to the Peak Downs mine. Therefore, we cannot say the

Agreement does not “fully or accurately express the agreement and

intention of the parties.” Phillipine Sugar Ests. Dev. Co., 247 U.S.

at 389. At best, this was a unilateral mistake on the part of Drum-

mond. The only apparent mutual mistake here was a poorly

drafted contract. Therefore, Drummond’s claim for equitable

reformation fails.

C. Attorneys’ Fees

Lastly, Drummond argues that the district court erred in

denying its request for attorneys’ fees. We agree.

We review the district court’s denial of attorneys’ fees for an

abuse of discretion. In re Trinity Indus., Inc., 876 F.2d 1485, 1496

(11th Cir. 1989). Under New York law, a prevailing party in a

breach of contract case may not collect attorneys’ fees and costs

from the non-prevailing party unless such an award is authorized

by the contract, statute, or court rule. TAG 380, LLC v. ComMet

380, Inc., 890 N.E.2d 195, 201 (N.Y. 2008). In determining the pre-

vailing party for purposes of awarding attorneys’ fees, the court

must consider “the true scope of the dispute litigated, followed by

a comparison of what was achieved within that scope.” Duane

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 15 of 25

20-14560 Opinion of the Court 15

Reade v. 405 Lexington, L.L.C. 798 N.Y.S.2d 393, 394 (N.Y. App.

Div. 2005). New York courts have also said that a prevailing party

“must simply prevail on the central claims advanced, and receive

substantial relief in consequence thereof.” Sykes v. RFD Third

Ave. I Assocs., LLC, 833 N.Y.S.2d 76, 77–78 (N.Y. App. Div. 2007).

The district court determined that since neither party was

the “prevailing party” an award of attorneys’ fees was inappropri-

ate. While Drummond succeeded on its claim regarding the mini-

mum Throughput Fees under the Agreement, Southern Coal suc-

ceeded on its claim regarding the escalated fees. Although Drum-

mond’s victory was not total because it did not obtain judgment

for the escalated fees, its “central claim” was that Southern Coal

breached the Agreement by failure to pay the monthly Through-

put Fee. The district court entered judgment in favor of Drum-

mond for $6.86 million based on Southern Coal’s breach in this re-

gard. This qualifies as “prevail[ing] on the central claims ad-

vanced.” See Sykes, 833 N.Y.S.2d at 77–78. A litigant’s success does

not have to be total to be considered the prevailing party. See

Duane Reade, 798 N.Y.S.2d at 394 (“That the landlord’s success at

trial was only partial does not negate the fact that it prevailed.”).

Therefore, we conclude that the district court abused its discretion

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 16 of 25

16 Opinion of the Court 20-14560

in not awarding attorneys’ fees to Drummond because Drummond

was the prevailing party. 1

New York law states that “when a contract provides that in

the event of litigation the losing party will pay the attorneys’ fees

of the prevailing party, the court will order the losing party to pay

whatever amounts have been expended by the prevailing party, so

long as those amounts are not unreasonable.” F.H. Krear & Co. v.

Nineteen Named Trustees, 810 F.2d 1250, 1263 (2d Cir. 1987) (ap-

plying New York law). Accordingly, we remand to the district

court for a determination of whether the attorneys’ fees Drum-

mond requests are reasonable.

III. SOUTHERN COAL’S ISSUES ON CROSS-APPEAL

A. Anticipatory Repudiation

On its appeal, Southern Coal argues that the district court

erred in determining that Drummond’s actions did not constitute

an anticipatory repudiation. “An anticipatory breach of contract

by a promisor is a repudiation of a contractual duty before the time

fixed in the contract for . . . performance has arrived.” Princes

Point LLC v. Muss Dev. LLC, 87 N.E.3d 121, 124 (N.Y. 2017) (al-

teration adopted). An anticipatory breach of contract—also known

as an anticipatory repudiation—can be shown through statements

by the obligor to the obligee or an affirmative act by the obligor.

1In its brief, Southern Coal argues that it is the prevailing party for purposes

of attorneys’ fees. Because we conclude that Drummond is the prevailing

party, Southern Coal’s argument in this regard fails.

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 17 of 25

20-14560 Opinion of the Court 17

Id. “For an anticipatory repudiation to be deemed to have oc-

curred, the expression of intent not to perform by the repudiator

must be ‘positive and unequivocal.’” Id. New York courts have

held that “a wrongful repudiation of the contract by one party be-

fore the time for performance entitles the nonrepudiating party to

immediately claim damages for a total breach.” Id. at 125.

Whether a party commits anticipatory repudiation of a contract is

a question of fact. O’ Connor v. Sleasman, 788 N.Y.S.2d 518, 520

(N.Y. App. Div. 2005).

When the price of coal increased to $285 per metric ton in

the first quarter of 2017, Southern Coal refused to pay its obliga-

tions under the Agreement because BHP was no longer setting a

quarterly benchmark price and the price escalation was therefore

invalid. Southern Coal sent a letter to this effect to Drummond in

March 2017 and demanded adequate assurances that Drummond

would not invoice more than the minimum $1 million per month.

Drummond responded that the price escalation clause remained

valid and it would continue to invoice Southern Coal based on the

quarterly benchmark price set by other companies. According to

Southern Coal, this response constituted anticipatory repudiation.

Notably, however, Drummond’s response stated, “Drummond’s

performance obligation is to provide Southern [Coal] with the

throughput services, and there is no question regarding Drum-

mond’s ability to provide these services.”

In its brief, Southern Coal cites to IBM Credit Fin. Corp. v.

Mazda Motor Mfg. (USA) Corp., where the New York court of

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 18 of 25

18 Opinion of the Court 20-14560

appeals held that a party’s “insistence on an untenable interpreta-

tion of a key contractual provision, and refusal to perform other-

wise, constituted an anticipatory breach of the contract.” 706

N.E.2d 1186, 1187 (N.Y. 1998). Thus, anticipatory repudiation re-

quires a refusal to perform under the contract. Here, Drummond’s

obligation under the Agreement was to provide throughput ser-

vices for its port to Southern Coal. At no point did Drummond

indicate that it would not perform that obligation. Therefore,

there can be no anticipatory repudiation. Accordingly, Southern

Coal’s argument that the district court should have excused South-

ern Coal from owing anything under the Agreement based on an-

ticipatory repudiation is without merit.

B. Material Breach

Similar to its anticipatory repudiation argument, Southern

Coal argues that the district court should have found that Drum-

mond materially breached the Agreement and therefore Southern

Coal was discharged of its contractual obligations. A breach of con-

tract is material if it goes “to the root of the agreement between

the parties.” Frank Felix Assocs., Ltd. v. Austin Drugs, Inc., 111

F.3d 284, 289 (2d Cir. 1997) (applying New York law). Further, “[a]

party’s obligation to perform under a contract is only excused

where the other party’s breach of the contract is so substantial that

it defeats the object of the parties in making the contract” and the

court must consider “the special purpose of the contract” in mak-

ing this determination. Id.

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 19 of 25

20-14560 Opinion of the Court 19

The district court concluded that Southern Coal’s material

breach argument was “without merit.” Southern Coal contends

that the escalated invoices constitute material breach. The district

court specifically noted that “[t]he fact that Southern Coal may not

agree with the amount that Drummond invoiced does not mean

that Drummond breached its duty to invoice as required under

. . . the Agreement.” We agree with the district court’s determina-

tion that Drummond did not materially breach the Agreement.

The “root” of the Agreement was that Drummond would provide

throughput services to Southern Coal. At no point did Drummond

indicate that it would not perform this obligation.

Our conclusion is consistent with the Second Restatement

of Contracts’ approach to determining whether a breach is mate-

rial. The Restatement notes the following circumstances, among

others, are significant in making this determination: (1) “the extent

to which the party failing to perform or to offer to perform will

suffer forfeiture;” (2) “the likelihood that the party failing to per-

form or to offer to perform will cure his failure, taking account of

all the circumstances including any reasonable assurances;” and (3)

“the extent to which the behavior of the party failing to perform or

to offer to perform comports with the standards of good faith and

fair dealing.” Restatement (Second) of Contracts § 241 (1981) (em-

phasis added). Thus, central to the material breach analysis is the

party’s failure to perform. Because Drummond continued to per-

form its obligations under the Agreement and because Drum-

mond’s breach in this case went to pricing, and not to the

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 20 of 25

20 Opinion of the Court 20-14560

Agreement’s “special purpose” of providing throughput services,

we cannot say that Drummond’s breach in this regard was mate-

rial. Frank Felix Assocs., Ltd., 111 F.3d at 289. Accordingly, we

conclude that Drummond did not materially breach the Agree-

ment and Southern Coal was not thereby excused from performing

its obligations under the Agreement.

C. Justice’s Liability under the Guarantee

Lastly, Southern Coal argues that if the award against it is va-

cated, then the award against Justice must also be vacated. How-

ever, since we are affirming the district court’s judgment against

Southern Coal, we need not address this argument. Regarding the

award of attorney fees, the guarantee agreement, signed by Justice,

provides that he “agrees to pay all expenses, including, without lim-

itation, all reasonable fees and expenses of outside counsel which

may be paid or incurred by [Drummond] in enforcing or asserting

any of their respective rights under this Guarantee.” Therefore,

the guarantee provides that Justice may also be liable for attorneys’

fees incurred by Drummond. We conclude that the judgment

against Justice stands and he is also liable for the additional award

of attorneys’ fees if Southern Coal is unable to pay Drummond for

this obligation.

IV. CONCLUSION

In sum, we affirm the district court’s judgment against

Southern Coal and Justice in the amount of $6,860,000 plus

$1,473,699.87 in prejudgment interest for a total of $8,333,699.87.

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 21 of 25

20-14560 Opinion of the Court 21

We conclude that the district court correctly found as a matter of

law that the price escalation clause in the Agreement was ambigu-

ous. We further conclude that district court did not clearly err in

interpreting this provision at trial and finding it unenforceable. We

also reject Drummond’s claim of equitable reformation and South-

ern Coal’s claims of anticipatory repudiation and material breach.

Lastly, we conclude that the district court erred in not awarding a

reasonable sum of attorneys’ fees to Drummond. Therefore, we

reverse on the issue of attorneys’ fees and remand to the district

court to determine a reasonable sum.

AFFIRMED in part, and REVERSED and REMANDED in

part.

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 22 of 25

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 23 of 25

20-14560 ED CARNES, J., Concurring 1

ED CARNES, Circuit Judge, concurring in part and concurring in

the judgment:

I concur in the panel’s judgment and most of its opinion, in-

cluding the conclusion that Drummond is entitled to a reasonable

amount of attorney’s fees. But I disagree about why Drummond

is entitled to them.

Unlike the majority opinion, I don’t think a prevailing party

analysis is the right attorney’s fees framework. The parties’ agree-

ment calls for a different framework, and under New York law that

choice should be honored. The agreement provides that the “De-

faulting Party shall indemnify the Non-Defaulting Party for any ex-

penses and costs, including attorney fees, arising out of or relating

to any default under this Agreement or any effort to collect pay-

ment.” And it defines a “Defaulting Party” as a party who, among

other things, “fails to make a payment as required under this Agree-

ment.”

Those contract terms matter because when considering

whether to award attorney’s fees in a contract dispute, New York

courts generally follow the terms of the contract. Admittedly, the

caselaw is not crystal clear, but the courts of that state don’t appear

to apply a prevailing party analysis where the contract provides

otherwise. Instead, they apply a “defaulting party” analysis when

the terms of the contract call for it and a “prevailing party” analysis

when the terms of the contract call for that.

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 24 of 25

2 ED CARNES, J., Concurring 20-14560

New York decisions have addressed contracts with “default-

ing party” language that is similar to the language used in the agree-

ment in this case. Those decisions have awarded attorney’s fees

based on whether a party “defaulted” instead of whether a party

“prevailed.” See Violet Realty, Inc. v. Amigone, Sanchez & Mat-

trey, LLP, 183 A.D.3d 1278, 1280–81 (N.Y. App. Div. 2020) (“The

lease provided that, in the case of a default, the default-

ing party is liable for the payment of, among other things, the

other party's reasonable attorneys’ fees. Defendant does not dis-

pute that it defaulted under the lease, and we conclude that the

court should have granted that part of plaintiff's motion seeking an

award of attorneys’ fees.”); LG Funding, LLC v. Johnson & Son

Locksmith, Inc., 170 A.D.3d 1153, 1154 (N.Y. App. Div. 2019); Sem-

pra Energy Trading Corp. v. P.G. & E. Tex. VGM, L.P., 284 A.D.2d

253, 254 (N.Y. App. Div. 2001) (“An award of attorneys’ fees was

proper since the parties expressly provided in their contract that, in

the event of a default, the defaulting party would be responsible for

costs and expenses, including attorneys' fees, incurred by the per-

forming party as a result of the default.”); Montgomery-Otsego-

Schoharie Solid Waste Mgmt. Auth. v. Cnty. of Otsego, 249 A.D.2d

702, 703–04 (N.Y. App. Div. 1998) (“Defendant's failure to pay the

GAT shortfall amount due under the contract constituted a default;

consequently, under the provision for counsel fees in the event of

a default, . . . MOSA's cause of action for counsel fees should not

have been dismissed.”).

USCA11 Case: 20-14560 Date Filed: 03/28/2022 Page: 25 of 25

20-14560 ED CARNES, J., Concurring 3

By contrast, where the contract provided that attorney’s fees

should be awarded to a “prevailing party,” or didn’t specify what

analysis should be used to award attorney’s fees, New York courts

have applied a prevailing party analysis. See, e.g., TAG 380, LLC

v. ComMet 380, Inc., 890 N.E.2d 195, 201 (N.Y. 2008); Sykes v. RFD

Third Ave. I Assocs., LLC, 39 A.D.3d 279, 279 (N.Y. App. Div.

2007); Duane Reade v. 405 Lexington, L.L.C., 19 A.D.3d 179, 180

(N.Y. App. 2005).

The difference between a defaulting party analysis and a pre-

vailing party analysis might matter in some circumstances, albeit

not in these. As mentioned, the agreement provides that the “Non-

Defaulting Party” gets attorney’s fees from the “Defaulting Party,”

which includes a party that “fails to make a payment as required

under th[e] Agreement.” Southern Coal failed to make a payment

as required under the agreement; it is the “Defaulting Party.” For

that reason, I reach the same conclusion under the defaulting party

contractual provision as the majority reaches under the prevailing

party analysis.

There’s not much more that needs to be said about the

proper route to follow to get to the same result. Because the result

is the same either way, and because our decision does not bind any

New York court anyway, I’ll leave it at that.