Architectural Ingenieria Siglo v. Dominican Republic

USCA11 Case: 20-14058 Document: 81-1 Date Filed: 12/28/2023 Page: 1 of 34

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14058

____________________

ARCHITECTURAL INGENIERIA SIGLO XXI, LLC,

Plaintiff-Appellant,

versus

DOMINICAN REPUBLIC,

INSTITUTO NACIONAL

DE RECURSOS HIDRAULICOS,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:13-CV-20544-KMM

____________________

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2 Opinion of the Court 20-14058

Before BRANCH and LUCK, Circuit Judges, and SANDS,∗ District

Judge.

SANDS, District Judge:

This appeal arises from a bench trial on Plaintiff-Appellant,

Architectural Ingenieria Siglo XXI, LLC’s (“AIS”), Amended Com-

plaint for breach of contract and damages following vacatur of a

prior judgment and remand by a prior panel of this Court. Archi-

tectural Ingenieria Siglo XXI, LLC v. Dominican Republic, 788 F.3d 1329,

1340 (11th Cir. 2015) (“Architectural I”). The contract to construct

an irrigation project in the Dominican Province of Azua was en-

tered into between AIS (“Appellant”), Sun Land & RGITC LLC, 1

(“Sun Land”), the Instituto Nacional de Recursos Hidraulicos

(“INDRHI”), an independent autonomous entity within the Do-

minican Republic, and the Dominican Republic. After the effective

date of the agreement consisting of the Purchase Agreement and

the Protocol, which together formed the contract at the center of

this dispute, performance of the contract continued through two

agreed extensions. Although a third extension had been approved

by the Parties, it never went into effect because the contract had

already been terminated by INDRHI.

∗ Honorable W. Louis Sands, United States District Judge for the Middle Dis-

trict of Georgia, sitting by designation.

1 Co-Plaintiff, Sun Land & RGITC LLC, f/k/a Sun Land & RGITC, Co., did

not join in the appeal.

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20-14058 Opinion of the Court 3

Pursuant to the Amended Complaint, AIS and Sun Land al-

leged that Dominican Republic and INDRHI breached the contract

and sought damages for the breach along with other specified dam-

ages. Following a bench trial, the district court issued its findings

of fact and conclusions of law. Therein, the district court con-

firmed its earlier summary judgment that INDRHI had breached

the agreement by terminating the contract in violation of the con-

tract’s force majeure terms and granted damages against INDRHI in

the amount of $576,842.00, plus prejudgment interest. The district

court also found that the Dominican Republic had not separately

breached the contract and AIS and Sun Land had failed to over-

come the Foreign Sovereign Immunities Act’s (“FSIA”) presump-

tion that the Dominican Republic and INDRHI are separate enti-

ties. 28 U.S.C. § 1603(b). The Court also found that damages for

unpaid work invoices were not due from INDRHI or the Domini-

can Republic, but rather co-Plaintiff, Sun Land. The Court recon-

sidered its findings and conclusions of law upon Appellant’s Motion

and denied it.

This appeal by AIS followed. AIS contends the trial court

abused its discretion and clearly erred by finding that the presump-

tion of separateness was not overcome, that the Dominican Repub-

lic did not breach the contract and that damages from unpaid in-

voices for work performed was not due from INDRHI or the Do-

minican Republic, but rather Sun Land. AIS also contends that the

trial court’s determination of damages was clearly erroneous and

an abuse of discretion. Upon review, because we find that the trial

court’s findings are substantially supported by the entire record and

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4 Opinion of the Court 20-14058

the court correctly applied the applicable law, it did not clearly err.

Therefore, with the benefit of oral argument, we affirm.

RELEVANT FACTUAL HISTORY 2

I. The Contract

This appeal focuses upon a contract to construct an irriga-

tion infrastructure project, in the Dominican Province of Azua,

commonly referred to as the Azua II project. At some point in the

year 2000, INDRHI, a governmental agency, which is substantially,

although not wholly funded by designations in the Dominican Re-

public’s national budget, proposed the construction of the Azua II

project. The purpose of the Azua II project was to irrigate a 3,000-

hectare area. INDRHI and the Secretario Tecnico de la Presidencia

de la Republica (“Technical Secretary”), acting on behalf of the Do-

minican Republic, invited contractors to submit bids to construct

the Azua II project. Sun Land and AIS ultimately submitted the

winning bid. Thereafter, on November 20, 2001, then-President of

the Dominican Republic, Hipolito Mejia, issued an executive order

granting authority to the Technical Secretary and INDRHI to enter

into various agreements on behalf of the Dominican Republic in

furtherance of the Azua II project.

One of those agreements was a Purchase Agreement be-

tween Sun Land, INDRHI and the Technical Secretary of the

2 Because the district court did not always elaborate upon some of its conclu-

sions, we, reviewing the entire record, include greater detail in our analysis for

clarity.

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Dominican Republic. Pursuant to the terms of the Purchase

Agreement, Sun Land agreed to purchase and export to the Do-

minican Republic the products and services necessary to complete

the Azua II project, including a feasibility study to determine the

exact needs of INDRHI. The Purchase Agreement provided that

Azua II was to be a turnkey project, which would take twenty-four

(24) months to complete, for a total fixed cost of $51,777,321.00.

Pursuant to the Purchase Agreement, on March 7, 2002,

INDRHI and AIS executed Contract No. 10375 to provide for the

studies, designs, and construction of the Azua II project. On Feb-

ruary 13, 2004, Sun Land, AIS and INDRHI entered into “The Pro-

tocol” that was designed to execute the terms of the Purchase

Agreement. The Protocol expressly superseded Contract No.

10375. Accordingly, when this matter was previously appealed in

Architectural I, a prior panel of this Court held that the Purchase

Agreement and the Protocol together are the contract at the center

of this dispute. 788 F.3d at 1340.

With the Purchase Agreement and the Protocol in place, AIS

commenced work on the Azua II project on March 16, 2004. Apart

from a three-month stop work order delay, from August 2004 to

November 2004, that was issued by INDRHI, the project continued

without interruption. Over the next four years, AIS leveled the land

and constructed lagoons and dykes. The majority of the actual

construction work took place in 2007 and 2008. By all accounts,

AIS’s performance of its construction duties over that four-year pe-

riod was satisfactory, with AIS fully complying with its obligations

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6 Opinion of the Court 20-14058

as principal contractor. Despite AIS fully complying with its obli-

gations as principal contractor, the Azua II project did not proceed

on time, and it became impossible to provide a turnkey project for

the initial budget of $51,777,321.00 in twenty-four (24) months, as

provided in the initial contract.

AIS ceased construction in August 2008 due to nonpayment.

Thereafter, on February 13, 2009, INDRHI notified Sun Land via

letter that because financing for the Azua II project had fallen

through, INDRHI would be terminating the Protocol citing force

majeure.

II. Financing Azua II

The Purchase Agreement provided that the total contract

price ($51,777,321.00) would be financed, 85% of which was to

come from a Credit Agreement with SunTrust Bank, N.A. (“Sun-

Trust”), guaranteed by Export-Import Bank of the United States

(“EX-IM”), with the remaining 15% of the total contract price to

be financed through a lender engaged by Sun Land. In sum, the

Dominican Republic was the borrower, SunTrust was the lender

through the letter of credit, and EX-IM was the guarantor. To ful-

fill its obligations under the Purchase Agreement, Sun Land en-

gaged the Florida Export Finance Corporation (“FEFC”) to ar-

range the 85% guaranteed loan with EX-IM.

Under the terms of the Purchase Agreement, the funds

could only be disbursed to Sun Land, and could only be disbursed

after EX-IM fully guaranteed the loan. In order for EX-IM to fully

guarantee the loan, the following three (3) steps were required: (1)

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20-14058 Opinion of the Court 7

the Dominican Republic complete the conditions precedent in the

Credit Agreement; (2) EX-IM issue an “Operative Memorandum”

agreeing that the conditions precedent had been satisfied; and (3)

EX-IM issue a Letter of Credit identifying how Sun Land could dis-

burse the funds.

This three-step approval process would prove the Azua II

project’s undoing not due to any fault of the Parties to this action,

but rather due to bureaucratic inefficiencies. Those bureaucratic

inefficiencies stemmed from the inattentiveness of EX-IM’s attor-

neys. For example, evidence was introduced at trial that all Parties

agreed that the conditions precedent for EX-IM’s guarantee were

satisfied as of October 28, 2003. However, in April 2004, EX-IM’s

attorney informed the Parties that the conditions precedent had

not been satisfied, because documents were missing from the Do-

minican Republic’s submission. It was later discovered, however,

that the missing documents had simply been misplaced by EX-IM’s

attorney. EX-IM attorney’s inattentiveness significantly delayed the

project, because EX-IM’s attorney took months to respond to

email, objected to statements of Dominican Republic law, and lost

key documents, including a $43,000,000.00 promissory note.

As a result of these bureaucratic delays, by the time EX-IM

issued a Letter of Credit in April 2006, the Credit Agreement’s ini-

tial Final Disbursement Date of October 15, 2005, had already

elapsed. Accordingly, the Credit Agreement was amended for the

first time on August 14, 2006, to extend the Final Disbursement

Date to October 15, 2007. The Parties agreed to amend the Credit

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8 Opinion of the Court 20-14058

Agreement a second time on March 2, 2007, to address issues in-

volving certain local costs that had not been accounted for by

EX-IM. The Parties agreed to amend the Credit Agreement for a

third time in January 2008 to extend the Final Disbursement Date

to October 15, 2009.

The Third Amendment to the Credit Agreement would not

be finalized until September 4, 2008, or presented to then-President

Leonel Fernandez of the Dominican Republic, for formal submis-

sion to the Dominican Republic Congress, until September 30,

2008. It is unclear whether President Fernandez ever submitted the

Third Amendment to the Credit Agreement to the Dominican Re-

public Congress for ratification. In any event, congressional ratifi-

cation became a moot issue when SunTrust withdrew from the

Azua II project before the Dominican Congress ratified the amend-

ment, citing the adversities faced in obtaining an extension of the

term period of the contract. INDRHI then notified Sun Land on

February 13, 2009, that it was terminating the Protocol citing force

majeure.

III. Payments Made Under the Contract

Under the terms of the Protocol, INDRHI and the Domini-

can Republic were required to review AIS’s invoices and if ap-

proved, transmit them with the appropriate approval documents to

Sun Land. Sun Land was then required to submit those approval

documents to the lender, SunTrust. SunTrust was then required to

disburse funds to Sun Land pursuant to the terms of the Credit

Agreement.

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During the five-month period, from May 2007 to Octo-

ber 15, 2007, during which funds for the Azua II project were avail-

able, SunTrust made twenty-seven (27) disbursements under the

Credit Agreement to Sun Land. Those twenty-seven (27) disburse-

ments totaled over $15,000,000.00. In anticipation of the Final Dis-

bursement Date, INDRHI, AIS, and Sun Land also took an advance

payment of $3,500,000.00 to continue work through December

2007. Eighty-five percent of that advance payment, $2,980.421.00,

was held by Sun Land in an account.

AIS in comparison issued a total of twenty-two (22) Cubi-

caciones (hereinafter “work invoice”) to be paid to AIS by Sun

Land, in the total amount of $12,398,044.00. The sum of Sun-

Trust’s disbursements exceeded the amount that AIS billed in its

work invoices. After the Final Disbursement Date, INDRHI in-

structed Sun Land in writing to pay AIS the balance owed that had

been withheld by Sun Land. Despite this, AIS was not paid in full

by Sun Land for work invoices 18(c)–22. The remission of the pay-

ment after approval was Sun Land’s responsibility.

IV. Subsequent Pertinent Events

After the contract was terminated, the following pertinent

events occurred. In March 2009, a month after INDRHI termi-

nated the contract, then-President of the Dominican Republic, Le-

onel Fernandez, allegedly advised the president of AIS, Mr. Morales

Perez, that he did not like Sun Land and would not continue the

work. In April 2009, Utah State University, which had been hired

to serve as the Construction Project Supervisor, issued a

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10 Opinion of the Court 20-14058

memorandum indicating that the President of the Dominican Re-

public had been offended by representatives from Sun Land and

had decided to freeze the project in December 2008, which was

four months after AIS ceased work on the project due to nonpay-

ment. Finally, in November 2011, years after the termination of the

contract by INDRHI, INDRHI issued several press releases stating

that it had entered into a contract with Constructora Queiroz Gal-

vao, S.A. (“CQG”), a Brazilian company, to complete Azua II.

RELEVANT PROCEDURAL HISTORY

Following the vacatur and remand of the entry of default

judgment, against Appellees, Appellant AIS and Sun Land filed an

Amended Complaint, alleging one count of breach of contract by

INDRHI and the Dominican Republic. Therein, Appellant alleged

that the Defendants had terminated the contract in violation of its

terms and failed to pay AIS, Appellant, the agreed price for the

work completed. The Amended Complaint is the operative com-

plaint in this matter.

At the summary judgment stage of proceedings, the district

court granted partial summary judgment in favor of Appellant and

Sun Land, co-plaintiff below, concluding that INDRHI was liable

for breach of contract, because it had failed to adhere to the notice

provisions relating to force majeure. The district court denied Ap-

pellant and Sun Land’s motion for summary judgment as to the

Dominican Republic’s liability. However, because it concluded that

AIS and Sun Land had not overcome the presumption that INDRHI

and the Dominican Republic were entitled to separate juridical

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status but had presented a genuine issue of material fact on that

question, the district court also denied the Appellees’ motion for

summary judgment.

Thereafter, a bench trial was held between January 30, 2017,

and March 14, 2017. 3 Following the bench trial, the district court

issued its findings of fact and conclusions of law on September 30,

2017. Therein, the district court found that INDRHI was liable to

Appellant-Plaintiff, AIS, and Sun Land, for breach of contract be-

cause its termination of the contract due to force majeure had been

in violation of the notice provisions of the contract. The court

found that the Dominican Republic was not liable for INDRHI’s

breach of contract, because it also found that Appellant had failed

to overcome the presumption that the Dominican Republic and

INDRHI were separate entities, and further that the Dominican

Republic had not separately breached the contract. The district

court then awarded Appellant AIS damages for the breach of con-

tract in the amount of $576,842.00 as lost profits, plus prejudgment

interest against INDRHI.

Appellant and Sun Land subsequently moved to amend the

district court’s findings of fact pursuant to Fed. R. Civ. P. 52(b) or in

the alternative for a new trial under Fed. R. Civ. P. 59(a)(2). Therein,

they contended that amendment or a new trial was appropriate,

3 The bench trial lasted for a total of eight (8) days, which were interspersed

between the months of January and March 2017.

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12 Opinion of the Court 20-14058

because the district court had (1) failed to attribute liability to the

Dominican Republic for delays in securing the project’s financing

that Appellant believes were attributable to the Dominican Repub-

lic Congress’s actions, (2) improperly treated certain evidence as

inadmissible hearsay and failed to give it proper weight, (3) over-

looked evidence that Appellant believes establishes that the Domin-

ican Republic instructed INDRHI to terminate Azua II, and (4) im-

properly excused Defendants (Appellees) for nonpayment of in-

voiced work. The district court treated Appellant’s motion to

amend as a motion for reconsideration and denied it, except for

partially altering its prior characterization of certain evidence as in-

admissible hearsay. This appeal followed.

STANDARD OF REVIEW

“On appeal of a district court order from a bench trial, we

review the court’s conclusions of law de novo and its findings of fact

for clear error.” HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d

867, 873 (11th Cir. 2005); see also Fed. R. Civ. P. 52(a)(6) (“Findings

of fact, whether based on oral or other evidence, must not be set

aside unless clearly erroneous, and the reviewing court must give

due regard to the trial court’s opportunity to judge the witnesses’

credibility.”) “Clear error is a highly deferential standard of re-

view.” Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317,

1319 (11th Cir. 2007) (quoting Holton v. City of Thomasville Sch. Dist.,

425 F.3d 1325, 1350 (11th Cir. 2005)).

“The court’s findings will stand as long as they are supported

by substantial evidence.” Fischer v. S/Y NERAIDA, 508 F.3d 586, 592

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20-14058 Opinion of the Court 13

(11th Cir. 2007) (citing Thelma C. Raley, Inc. v. Kleppe, 867 F.2d 1326,

1328 (11th Cir. 1989)). This is because “the district court has the

advantage of observing the witnesses and evaluating their credibil-

ity firsthand, and the standard of review imposes an especially

heavy burden on [the] appellant.” Id. (quotation marks omitted).

Stated otherwise, if “the district court’s account of the evidence is

plausible in light of the record viewed in its entirety, the court of

appeals may not reverse it even though convinced that had it been

sitting as the trier of fact, it would have weighed the evidence dif-

ferently.” Morrissette-Brown, 506 F.3d at 1319 (quoting Anderson v.

City of Bessemer City, 470 U.S. 564, 573–74 (1985)). This is because

when “there are two permissible views of the evidence, the fact-

finder’s choice between them cannot be clearly erroneous.” Id.

Finally, we “may affirm [the district court’s judgment] on

any ground that finds support in the record.” Lucas v. W.W. Grain-

ger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001) (quotation marks and

citations omitted).

DISCUSSION

Appellant, AIS, contends that the district court erred on six

(6) separate issues. 4 AIS’s six (6) issues, however, are subsumed by

4 Specifically, (1) whether the district court erred as a matter of law in failing

to hold the Dominican Republic legally responsible for the actions of its own

Congress; (2) whether the district court abused its discretion or committed

clear error in ignoring admitted, consistent, and unrebutted evidence that es-

tablished the Dominican Republic’s direct liability for breach of contract; (3)

whether the district court abused its discretion in ruling that the Dominican

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14 Opinion of the Court 20-14058

three (3) controlling issues on appeal which are: (A) whether the

district court’s conclusion that the Dominican Republic and

INDRHI are separate entities is supported by substantial evidence;

(B) whether the district court’s finding that the Dominican Repub-

lic did not breach the contract is supported by substantial evidence;

and (C) whether the district court’s determination of Appellant’s

damages is supported by substantial evidence pursuant to applica-

ble law. We shall address each issue in turn.

A. The District Court’s Finding that the Dominican Republic

and INDRHI Are Separate Entities Is Supported by Substan-

tial Evidence.

Appellant first contends that the district court abused its dis-

cretion by concluding that Appellant and Sun Land, i.e., Plaintiffs

below, “[had] not met their burden of overcoming the presumption

of juridical separateness” under the Foreign Sovereign Immunities

Act. Appellees argue this question was already decided in Architec-

tural I, wherein they contend that this Court held that the Domini-

can Republic and INDRHI “had established entitlement to the FSIA

presumption of separateness and that AIS had failed to overcome

it.”

Republic and INDRHI were entitled to the presumption of separateness; (4)

whether the district court abused its discretion in limiting AIS’s lost future

profits in a manner that allegedly applied the wrong legal standard and ignored

the evidence; (5) whether the district court’s finding that AIS had been com-

pensated for its delay damages was clear error; and (6) whether the district

court erred as a matter of law by not awarding damages for work performed

once it found AIS had not been paid for work it performed and invoiced.

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In Architectural I, the Dominican Republic challenged the dis-

trict court’s subject matter jurisdiction over AIS and Sun Land’s

breach-of-contract claims. We held that the district court had sub-

ject matter jurisdiction over the Dominican Republic pursuant to

its explicit waiver of sovereign immunity contained in the Purchase

Agreement which the Dominican Republic had signed. 788 F.3d at

1341–42. We further held that the waiver extended to the “[P]ro-

tocol [as it] constitutes a transaction contemplated by the [P]ur-

chase [A]greement.” Id. at 1342. We then held with respect to three

side agreements signed only by INDRHI—which we found to be un-

related to the Purchase Agreement or Protocol—that AIS and Sun

Land had failed to overcome the FSIA’s presumption that the Do-

minican Republic and INDRHI are separate entities under the

FSIA. Id. at 1342–43. Thus, we concluded that the Dominican Re-

public was not amenable to suit in federal court for its alleged

breach of those three agreements. Id. at 1343.

However, our holding in Architectural I focused on the dis-

trict court’s jurisdiction and is not the law of the case as to the issue

on appeal here; i.e., whether AIS met its burden to overcome the

FSIA presumption of juridical separateness as to the Purchase

Agreement and Protocol. Nor did we discuss in Architectural I the

elements necessary to overcome the presumption. See Christianson

v. Colt Indus. Operating Corp., 486 U.S. 800, 815–16 (1988) (“As most

commonly defined, the doctrine [of the law of the case] posits that

when a court decides upon a rule of law, that decision should con-

tinue to govern the same issues in subsequent stages in the same

case.” (quoting Arizona v. California, 460 U.S. 605, 618 (1983)); see

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16 Opinion of the Court 20-14058

also Transamerica Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d

1326, 1332 (11th Cir. 2005) (noting that the law-of-the-case doctrine

only applies to the extent the issue in question was within the scope

of the prior appeal).

Therefore, to hold the Dominican Republic liable for

INDRHI’s breach of contract, AIS had to overcome the FSIA’s pre-

sumption of separate legal status. As this is a mixed question of

law and fact, the standard of review depends on “whether answer-

ing [the question] entails primarily legal or factual work.” Monasky

v. Taglieri, 140 S. Ct. 719, 730 (2020) (quoting U.S. Bank Nat’l. Ass’n

v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 967 (2018)).

Mixed questions are not all alike. . . . [S]ome require

courts to expound on the law, particularly by amplify-

ing or elaborating on a broad legal standard. When

that is so—when applying the law involves developing

auxiliary legal principles of use in other cases—appel-

late courts should typically review a decision de novo.

But . . . other mixed questions immerse courts in

case-specific factual issues—compelling them to mar-

shal and weigh evidence, make credibility judgments,

and otherwise address what we have (emphatically if

a tad redundantly) called “multifarious, fleeting, spe-

cial, narrow facts that utterly resist generalization.”

And when that is so, appellate courts should usually

review a decision with deference.

Vill. at Lakeridge, 138 S. Ct. at 967 (citations omitted). Here, for the

reasons noted below, we review de novo the district court’s finding

that the Dominican Republic and INDRHI are separate entities.

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According to the Supreme Court of the United States, as

stated in First National City Bank v. Banco Para El Comercio Exterior de

Cuba, the FSIA’s presumption of separate legal status may be over-

come in two ways: (1) “where a corporate identity is so extensively

controlled by its owner that a relationship of principal and agent is

created” or (2) where recognition of the instrumentality as an en-

tity separate from the state “would work fraud or injustice.” 462

U.S. 611, 629 (1983) (quotations omitted). In this case, AIS at-

tempted to overcome the FSIA’s presumption by contending that

INDRHI was so extensively controlled by the Dominican Republic

that a relationship of principal and agent existed.

Under this Circuit’s precedent, in cases “[w]here jurisdiction

depends on an allegation that the particular defendant was an agent

of the sovereign, the plaintiff bears the burden of proving this rela-

tionship.” S & Davis Int’l Inc. v. Republic of Yemen, 218 F.3d 1292,

1299 (11th Cir. 2000) (quoting Arriba Ltd. v. Petroleos Mexicanos, 962

F.2d 528, 533–34 (5th Cir. 1992)). When “applying the agency ex-

ception to the rule of sovereign immunity [and separateness], how

much control the sovereign exercised over the instrumentality is

reviewed.” Id. at 1299 (quoting Transamerica Leasing, Inc. v. La Re-

publica de Venezuela, 200 F.3d 843, 848 (D.C. Cir. 2000)). “Control is

relevant when the sovereign exercises its control in such a way as

to make the instrumentality its agent; in that case control renders

the sovereign amenable to suit under ordinary agency principles.”

Id. (alteration adopted) (quoting La Republica de Venezuela, 200 F.3d

at 849). While it is true that a “sovereign need not exercise com-

plete dominion over an instrumentality—to the point of stripping

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18 Opinion of the Court 20-14058

it of any meaningful separate identity—in order to establish a rela-

tionship of principal and agent,” the sovereign must still exercise

“its control in a manner more direct than by voting a majority of

the stock in the subsidiary or making appointments to the subsidi-

ary’s Board of Directors.” Id.

In this Circuit’s seminal case on the FSIA’s presumption of

separateness under 28 U.S.C. § 1603(b), Yemen, we held that the pre-

sumption of separateness was overcome, such that the instrumen-

tality was not an independent entity from the sovereign, when the

instrumentality “fail[ed] to provide any evidence of an independent

entity” and “issu[ed] direct orders to terminate the contract.” 218

F.3d at 1299; see Alfred Dunhill of London, Inc. v. Republic of Cuba, 425

U.S. 682, 695 (1976). Our sister circuits have since refined the ex-

tensive control inquiry required by the Supreme Court in Banco

Para and have held that a sovereign exercises its control in such a

way as to make the instrumentality its agent when the sovereign

state “exercises significant and repeated control over the instru-

mentality’s day-to-day operations.” EM Ltd. v. Banco Cent. de la Re-

publica Arg., 800 F.3d 78, 91 (2d Cir. 2015); see Hester Int’l Corp. v. Fed.

Republic of Nigeria, 879 F.2d 170, 178 (5th Cir. 1989) (collecting cases

holding failure to prove day-to-day control fails to overcome pre-

sumption of juridical separateness).

Appellees contend that the district court’s decision was cor-

rect because the presumption of juridical separateness may be

overcome only by evidence that the foreign sovereign “exercises

significant and repeated control over the instrumentality’s

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20-14058 Opinion of the Court 19

day-to-day operations.” However, we have never specifically held

that to overcome the presumption of juridical separateness a party

is required to provide evidence that the foreign sovereign “exercises

significant and repeated control over the instrumentality’s

day-to-day operations.” As discussed below, because AIS did not

meet its burden of proving the existence of a principal-agent rela-

tionship under Yemen, it is also unnecessary for us to consider at this

time whether to adopt our sister circuits’ refinements.

AIS did not meet its burden because the additional testimo-

nial evidence AIS presented at trial merely establishes that INDRHI

was a governmental organization financed by the state budget and

that some of INDRHI’s Board and Management were appointed

by the Dominican Republic’s Executive Branch. That is insufficient

under Yemen, because the parent must exercise “its control in a

manner more direct than by voting a majority of the stock in the

subsidiary or making appointments to the subsidiary’s Board of Di-

rectors.” 218 F.3d at 1299 (quoting La Republica de Venezuela, 200

F.3d at 849).

Furthermore, INDRHI’s designated corporate representa-

tive, Jose Raul Perez-Duran, testified extensively about INDRHI’s

autonomy and separate status, which supports the conclusion that

INDRHI, despite being a governmental organization, was not un-

der the Dominican Republic’s operational control. That evidence

focused on how INDRHI has its own bank accounts as well as ac-

counting system, was financed by the state budget and external re-

sources, and how INDRHI’s executive director made all the

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20 Opinion of the Court 20-14058

decisions concerning contracts, projects, personnel, and INDRHI’s

budget. Mr. Duran also noted that apart from appointing

INDRHI’s director, the President of the Dominican Republic had

no function within INDRHI. These facts sufficiently cut against

AIS’s contention that INDRHI was under the President of the Do-

minican Republic’s day-to-day operational control.

Accordingly, we find that substantial evidence supports the

district court’s finding that Appellant failed to overcome the FSIA’s

presumption that the Dominican Republic and INDRHI are sepa-

rate entities, and thus, we conclude that the district court did not

err in making this finding.

B. The District Court’s Finding that the Dominican Republic

Did Not Breach the Contract Is Supported by Substantial Ev-

idence.

Despite the district court correctly concluding that INDRHI

and the Dominican Republic are separate, Appellant also disagrees

with the district court’s finding and conclusion that the Dominican

Republic did not itself, apart from INDRHI, breach the contract. It

is Appellant’s theory that the Dominican Republic breached the

contract by either (1) causing the Azua II project’s financing delays

or (2) because the President of the Dominican Republic ordered

the contract to be terminated. Neither theory of the case with-

stands scrutiny upon review of the entire record for the reasons

stated below.

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20-14058 Opinion of the Court 21

1. The District Court’s Finding that the Dominican Re-

public Did Not Breach the Contract by Causing Azua

II’s Financing Delays Is Supported by Substantial Evi-

dence.

In the district court’s findings of fact, the district court con-

cluded that Azua II’s financing delays were not attributable to any

one party but were rather due to “bureaucratic delays and a com-

plex approval system.” Appellant contends that this finding was

clear error because the financing delays were attributable to the

Dominican Republic, and therefore, the Dominican Republic

breached the contract.

In support of its contention that the district court commit-

ted clear error, Appellant highlights a letter from the Dominican

Republic’s State Secretary of Finance, dated July 9, 2007. That let-

ter was submitted in support of a request to extend the Final Dis-

bursement Date. In that letter, the State Secretary of Finance

acknowledged that the “reasons for the delay were mainly because

of the spending restriction measures imposed by the Dominican

Government,” which stemmed from a banking crisis that began in

2003. Appellant also relies upon the district court’s finding that

there was “no evidence that [AIS] caused any of the delays.” It is

essentially AIS’s position that since the district court found that AIS

was not the cause of the delays, and AIS has some evidence that

supports the conclusion that the Dominican Republic was at fault,

that the district court committed clear error by ignoring the July 9,

2007 letter, and by finding that the delays are not attributable to any

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22 Opinion of the Court 20-14058

one party, “but were instead the result of bureaucratic delays and a

complex approval system.”

While it is true that no evidence was presented that AIS

caused the delay in securing financing, Appellant’s appeal and the-

ory of the case disregard the timeline of events, the other evidence

that was presented at trial, and the standard of review by which we

are bound. In the present case, there was substantial evidence to

support the district court’s finding that the delays are not attribut-

able to any one party to the contract, “but were instead the result

of bureaucratic delays and a complex approval system.” That evi-

dence focused on how EX-IM’s attorneys, who were key players in

securing financing for the project, took months to respond to email

and draft key documents, lost other documents, issued a letter of

credit in the wrong amount, and required the Dominican Republic

to amend and submit the Credit Agreement to the Dominican

Congress on three separate occasions. That evidence also makes it

clear that the Dominican Republic had continued to comply with

its obligations under the contract because they continued to satisfy

the conditions precedent in the Credit Agreement.

Even if there is some evidence that the delays were attribut-

able to the Dominican Republic as Appellant contends, Appellant’s

argument focuses solely on the delay related to the third extension

of the Final Disbursement Date. This argument is not compelling

when examined within the entire timeline of the contract as the

district court did. Appellant ignores the fact that the Parties con-

tinued to perform under the contract during the prior extensions

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20-14058 Opinion of the Court 23

of the Final Disbursement Date. For example, even though it be-

came clear in 2005 that financing for the project was an issue, the

majority of the actual construction work performed by AIS took

place in 2007 and 2008—after the Credit Agreement’s initial Final

Disbursement Date of October 15, 2005, had elapsed. AIS com-

menced work on the AZUA II project in March 2004, and other

than a three-month stop work order, the project continued without

interruption until AIS ceased construction in August 2008. Recall

that under the terms of the Purchase Agreement, funds could not

be disbursed to Sun Land for further disbursement to AIS until EX-

IM fully guaranteed the loan, which required EX-IM to issue a Let-

ter of Credit identifying how Sun Land could disburse the funds.

EX-IM did not even issue the Letter of Credit until April 2006, and

the Final Disbursement Date was not adjusted until August 2006

and again in March 2007. Based on the facts in the record, funds

were available for the Azua II project for only a five-month period

from May 2007 to October 2007. Yet, AIS continued working on

the project from March 2004 until mid-2007 while funds were not

available and did not cease construction on the project until August

2008. AIS’s continued performance suggests that the Parties did

not believe the financing delays were substantial or cause for con-

cern. AIS’s argument positing now that only the third financing

delay—which AIS attempts to lay exclusively at the feet of the Do-

minican Republic—caused the financial collapse of the Azua II pro-

ject is not persuasive.

Given that “[c]lear error is a highly deferential standard of

review” and the “district court’s account of the evidence is

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24 Opinion of the Court 20-14058

plausible in the light of the record viewed in its entirety,” we cannot

say that the district court clearly erred in finding that the Domini-

can Republic was not responsible for the Azua II project’s financing

delays, and we cannot reverse. Morrissette-Brown, 506 F.3d at 1319

(second quote quoting Anderson, 470 U.S. at 573–74).

2. The District Court’s Finding that the Dominican Re-

public Complied with Its Obligations under the Con-

tract Is Supported by Substantial Evidence.

In the district court’s findings of fact, it concluded that the

Dominican Republic had fulfilled its obligations pursuant to the

contract by submitting approvals for work performed by AIS in

compliance with the Credit Agreement, and therefore did not

breach the contract. Appellant contends that this finding was clear

error, because, according to AIS, the Dominican Republic’s then-

President, Leonel Fernandez, ordered INDRHI to terminate the

contract for political reasons.

In support of this contention, Appellant highlights the fol-

lowing five pieces of evidence that Appellant claims were unrebut-

ted: (1) a conversation AIS’s President, Julio Morales Perez, had

with then-President Fernandez of the Dominican Republic in

March 2009, in which President Fernandez allegedly stated he did

not like Sun Land and that “under these conditions, the Dominican

State will not continue the work”; (2) the testimony of Sun Land’s

principal, Daniel Mejia, that President Fernandez “made the deci-

sion [to] cancel[ ] the transaction anyway[s]”; (3) the President of

the Florida Export Finance Corporation, Steve Fancher’s, opinion

that the President of the Dominican Republic killed the deal for

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20-14058 Opinion of the Court 25

political reasons; (4) a University of Utah Memorandum stating

that the Dominican Republic froze the project in December 2008;

and (5) the fact that the Dominican Republic later awarded the

Azua II contract to CQG. It is Appellant’s position that since this

evidence was uncontested, the district court must have ignored it

and therefore committed clear error.

Appellant’s argument that the district court “ignored” the

evidence is demonstratively false. The district court considered this

evidence twice, directly addressing it in its Findings of Fact as well

as in its Order on Appellant’s Motion for Reconsideration. In the

district court’s findings of fact, it concluded that some of the evi-

dence Appellant now cites was hearsay and “insufficient to support

[the] finding that the Dominican Republic breached the Contract.”

While the district court later admitted and considered Julio Mo-

rales Perez’s testimony, Stephen Fancher’s testimony, and the Utah

State University memorandum, as non-hearsay on Appellant’s Mo-

tion for Reconsideration, the district court still determined that Ap-

pellant’s evidence was insufficient to establish that the Dominican

Republic had breached the contract when considered by the district

court in its analysis.

Furthermore, upon examination of the evidence AIS cites in

context, we cannot say that the district court’s decision not to credit

or give considerable weight to that evidence was inappropriate.

For example, the district court’s decision not to credit the testi-

mony of Sun Land’s principal, Daniel Mejia, that President Fernan-

dez “made the decision [to] cancel[ ] the transaction anyway[s]”

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26 Opinion of the Court 20-14058

was appropriate, because that testimony pertained to an entirely

different and separate project within the Dominican Republic that

Sun Land had financed. The district court’s decision not to credit

or give great weight to AIS’s President Julio Morales Perez’s testi-

mony, that President Fernandez stated in March 2009 that he did

not like Sun Land and that “under these conditions, the Dominican

State will not continue the work”, was appropriate because the

contract had already been terminated by INDRHI months before.

The University of Utah Memorandum suffers from the same de-

fect because it was written months after the fact, and AIS had al-

ready ceased construction in August 2008, months before the Do-

minican Republic allegedly “froze” the Azua II project in Decem-

ber 2008. Furthermore, the fact that the Dominican Republic

awarded a contract for Azua to CQG is not evidence that the Do-

minican Republic’s president terminated the former contract, be-

cause the CQG contract was entered into years after the contract

with AIS had been terminated. Finally, Steven Fancher provided no

testimony that would support his opinion that President Fernandez

killed the deal for political reasons. As such, even if it was in fact

unrebutted, as Appellant contends, the district court did not need

to credit or give weight to this evidence as it was not otherwise

supported and there was other substantial evidence to support the

trial court’s finding. See Hearn v. McKay, 603 F.3d 897, 904 (11th Cir.

2010) (“It is the exclusive province of the judge in non-jury trials to

assess the credibility of witnesses and to assign weight to their tes-

timony.” (citation, brackets, and quotation marks omitted)); United

States v. Brown, 415 F.3d 1257, 1270 (11th Cir. 2005) (“Questions

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20-14058 Opinion of the Court 27

about the weight given to testimony, as distinguished from the is-

sue of its admissibility, are for the factfinder.”)

In addition, the district court’s finding that the Dominican

Republic did not breach the contract because it fulfilled its obliga-

tions pursuant to the contract is supported by substantial evidence.

That evidence centered on how the Third Amendment to the

Credit Agreement was presented to then-President Leonel Fernan-

dez for formal submission to the Dominican Republic Congress on

September 30, 2008, as well as the fact that the Dominican Republic

approved payment of all AIS’s work invoices. While it is unclear

whether the Third Amendment to the Credit Agreement was ever

formally submitted to the Dominican Republic Congress, as stated

supra, congressional ratification became a moot issue after Sun-

Trust withdrew from Azua II. Also, as noted, the district court

viewed the action of the Parties regarding financing and extensions

through the contract’s termination.

As such, given that the district court was in the best place to

judge the witnesses’ credibility, and the district court’s account of

the evidence is plausible in light of the record viewed in its entirety,

the district court’s finding that the Dominican Republic did not

breach the contract is not clearly erroneous. Morrissette-Brown, 506

F.3d at 1319.

C. The District Court’s Determination of Damages Is Sup-

ported by Substantial Evidence.

Finally, Appellant contends that the district court committed

clear error and abused its discretion when it only awarded

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28 Opinion of the Court 20-14058

Appellant $576,842.00 in damages for lost profits. Appellant con-

tends that the district court committed clear error and abused its

discretion for the following three (3) reasons. First, the district

court abused its discretion by ignoring proper methods of calculat-

ing lost profits. Second, the district court committed clear error by

ignoring evidence of AIS’s delay damages. Finally, the district court

abused its discretion by refusing to award AIS damages from

INDRHI for unpaid invoices.

AIS’s three (3) reasons once again mistake the actual issues

presently on appeal, which are: (1) whether the district court’s dam-

ages determinations are supported by substantial evidence and cor-

rect application of law as to damages; and (2) whether the district

court correctly interpreted the contract when it declined to award

AIS damages for unpaid invoices.

The district court’s damages determinations are supported

because AIS presented wholly inadequate evidentiary support for

its claims of lost profits and alleged delay damages. Therefore, the

district court’s decision to credit Appellees’ damages expert was ap-

propriate. The district court also correctly interpreted the contract

as it pertained to who was responsible for AIS’s unpaid invoices.

1. The District Court’s Damages Determinations Are

Supported by Substantial Evidence.

Under Florida law, “evidence as to the amount of damages

cannot be based on speculation or conjecture, but must be proven

with certainty.” Sun Life Assurance Co. of Can. v. Imperial Premium

Fin., LLC, 904 F.3d 1197, 1222 (11th Cir. 2018) (citation and

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20-14058 Opinion of the Court 29

quotation marks omitted). In this case, Appellant did not establish

with certainty its lost profit damages or delay damages. In contrast,

Appellees presented evidence that supported their determination

of lost profits and delay damages. As such, even though there are

two permissible views of the evidence in this case, given that only

one view of the evidence was sufficiently supported, the district

court’s choice to credit Appellee’s expert cannot be clearly errone-

ous. Morrissette-Brown, 506 F.3d at 1319.

a. The District Court Did Not Err in its Lost Prof-

its Findings of Fact.

There are “two generally recognized methods of proving

lost profits: (1) the before and after theory and (2) the yardstick

test.” G.M. Brod & Co. v. U.S. Home Corp., 759 F.2d 1526, 1538 (11th

Cir. 1985) (quoting Lehrman v. Gulf Oil Corp., 500 F.2d 659, 667 (5th

Cir. 1974)). The before and after theory compares a plaintiff’s prof-

its recorded prior to the breach (or statutory violation as was the

case in G.M. Brod) with those after the breach or anticipated profits.

Id. Both Parties here purported to employ this method for deter-

mining Appellant’s lost profit damages.

To establish its lost profits and delay damages, AIS relied

upon the testimony of Mr. Ben Nolan, an engineering, construc-

tion, and project management expert. Mr. Nolan conceded that it

was “pretty likely” that in calculating AIS’s lost profits, he and his

employee, Mr. Solomon, a certified public accountant, who did not

provide testimony or sit for a deposition, had only actually consid-

ered one financial document— AIS’s 2007 financial statement pre-

pared by Rosillo & Associates. Mr. Nolan and his employee only

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30 Opinion of the Court 20-14058

relied upon that one document because AIS did not produce any

general ledgers, cost/payroll reports, evidence of purchase orders,

invoices, payments, or any other supporting transactional docu-

ments during discovery, and therefore, Mr. Nolan was “always look-

ing for more documents.”

In contrast, Appellees’ expert, Mr. Daniel Hughes, was a cer-

tified public accountant who calculated damages utilizing the be-

fore and after theory. Unlike Mr. Nolan, Mr. Hughes also relied

upon AIS’s 2006 financial statement, which Mr. Nolan had omitted

from his report when calculating AIS’s damages. This resulted in

Mr. Hughes estimating that AIS’s total profit, had the project been

completed on schedule, would have been $3,229,600.00, after com-

paring AIS’s operating expenses with its gross profit in 2006 and

2007. Mr. Hughes was then able to utilize the “benefit of the bar-

gain” approach to calculate AIS’s lost profits based on what the Par-

ties anticipated, and he calculated those lost profits through 2008

to be $576,842.00.

Mr. Hughes was also utilized to impeach the testimony of

Mr. Nolan and testified that Mr. Nolan’s calculations had not fol-

lowed the general standards of the accounting profession, specifi-

cally in regard to management representation. Mr. Nolan’s calcu-

lations had not followed the standards of the accounting profes-

sion, because Mr. Nolan’s assumptions about damages, which were

based on management representation, were not independently val-

idated, or confirmed to be true and accurate or sufficiently sup-

ported by the record evidence.

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20-14058 Opinion of the Court 31

As such, we cannot find that the district court committed

clear error in deciding to credit Appellees’ expert over Appellant’s,

when determining damages, specifically lost profits, where both

Parties purported to use the same accounting method. The district

court did not err, because AIS failed to provide evidence from

which the amount of its lost profit damages could be reasonably

and reliably ascertained. The district court found Appellees’ calcu-

lations should be accepted, and substantial evidence supports its

finding.

b. The District Court Did Not Err in its Delay

Damages Findings of Fact.

Appellant next contends that the district court committed

clear error when it declined to award AIS delay damages. Appellant

contends that it is entitled to delay damages because Appellees de-

layed the construction under the contract and because of that de-

lay, Appellant’s operating costs increased.

The district court declined to award AIS delay damages, be-

cause AIS failed to provide evidence of a sustained loss attributable

to INDRHI’s delay and any additional expense incurred because of

the delay was already included in the invoices that had been sub-

mitted to INDRHI for approval. Accordingly, the district court con-

cluded that these additional operating costs had already been fac-

tored into the invoices submitted by AIS and that neither AIS nor

Sun Land was entitled to delay damages from INDRHI or the Do-

minican Republic.

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32 Opinion of the Court 20-14058

Appellant contends that the district court erred because Ap-

pellant now claims that it presented competent evidence that AIS

suffered $1,880,268.00 in delay damages resulting from INDRHI’s

breach of contract. Appellant’s argument fails, however, because

upon review of the record in its entirety, we note that AIS never

presented documentary evidence of delay damages in the amount

of $1,880,268.00 to the district court. Rather, AIS now attempts to

recharacterize damages that were denied for “work performed” as

delay damages.

As such, the district court did not clearly err when it deter-

mined that AIS was not entitled to delay damages, because it found

that any delay damages were accounted for in the approved work

invoices. Appellant presents no separate support for delay damages

apart from its unpaid work reports.

2. The District Court Did Not Abuse Its Discretion

When It Found that Sun Land Was Responsible for

AIS’s Unpaid Invoices.

Finally, Appellant contends that the district court abused its

discretion when it concluded that payment on unpaid work in-

voices was the responsibility of Sun Land, not Appellees. Appellant

contends that the district court abused its discretion because it

acknowledged that AIS had not been paid for certain work invoices,

but then declined to order INDRHI or the Dominican Republic to

pay AIS.

The district court declined to order Appellees to pay AIS, be-

cause Sun Land had already received funds to cover those expenses

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20-14058 Opinion of the Court 33

from SunTrust but failed to remit them to AIS. We note that Ap-

pellant’s expert similarly concluded that “Sun Land and AIS have

Excess Funds” and that the “[Appellees] owe $0 to AIS for Unpaid

Invoices.” Despite the district court agreeing with its own expert’s

conclusions, Appellant contends that the district court abused its

discretion by not ordering Appellees to pay AIS for the work in-

voices. As this issue turns upon the interpretation of the contract,

the standard of review is de novo. HGI Assocs., Inc., 427 F.3d at 873.

Appellant contends that under the terms of the Purchase

Agreement, the Dominican Republic had the contractual obliga-

tion to pay for the work, not Sun Land. Appellant’s argument fails

because the Purchase Agreement and the Protocol together form

the contract that is at the center of this dispute. When the Pur-

chase Agreement and the Protocol are examined together, it is clear

the responsibility for the unpaid invoices lies with Sun Land.

The responsibility for the unpaid invoices lies with Sun Land

because, under the terms of the Protocol, INDRHI and the Domin-

ican Republic were required to review AIS’s invoices, and if ap-

proved, transmit them with the appropriate approval documents to

Sun Land. Sun Land was then required to submit those approval

documents to the lender, SunTrust. SunTrust was then required to

disburse funds to Sun Land under the terms of the Purchase Agree-

ment, and as stated supra, the funds could only be disbursed to Sun

Land. Once Sun Land took that disbursement from SunTrust, Sun

Land became obligated to pay AIS.

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34 Opinion of the Court 20-14058

Given that evidence was presented that INDRHI had ap-

proved the work invoices for payment as well as directed Sun Land

to pay AIS and that excess funds had already been disbursed to Sun

Land, the district court did not abuse its discretion when it con-

cluded that responsibility for the unpaid invoices lay with Sun

Land, after INDRHI had approved them for payment and Sun Land

received the funds meant to pay AIS’s invoices from SunTrust.

CONCLUSION

In conclusion: (A) substantial evidence supports the district

court’s findings of fact and conclusions of law that Appellant failed

to overcome the FSIA’s presumption that the Dominican Republic

and INDRHI are separate entities, and thus, we conclude that the

district court did not err in making this finding; (B) substantial evi-

dence supports the district court’s findings of fact that the Domin-

ican Republic did not separately breach the contract itself, such

findings are plausible in light of the record and thus, the district

court did not clearly err in finding that the Dominican Republic

was not liable to AIS for breach of contract; and (C) substantial ev-

idence supports the district court’s findings of fact and determina-

tions of credibility of witnesses in calculating all damages owed to

AIS and in determining that neither the Dominican Republic nor

INDRHI is responsible for paying AIS’s unpaid invoices and thus,

the district court did not abuse its discretion in its determination of

the amount of damages awarded to AIS. Accordingly, we AFFIRM.