MEMORANDUM OPINION ON PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE TESTIMONY AND EVIDENCE OF DEFENDANTS' DIRECT AND INCIDENTAL DAMAGES

ECF No. 271

LISA PUPO LENIHAN, Magistrate Judge.

I. SUMMATION

Plaintiff has filed a Motion in Limine to preclude testimony and evidence of Defendants' direct and incidental damages, ECF No. 271 ("Plaintiff's Motion on Certain Damages"). For the reasons set forth more fully below, the Court will grant the Motion as to those damages listed in Defendant's June 15, 2017 Second Amended Pretrial Statement, ECF No. 268 ("Defendants' Second APS"), as "B. Additional Direct and Incidental Damages" items 2 through 5. Said damages constitute loan interest payments, property taxes and "other carrying costs", and are therefore within the contractual limitations of damage provisions for which the Court has provided detailed analysis and express holdings on more than one occasion.

The Court will also grant said Motion as to the damages listed in Defendants' Second APS, ECF No. 268, as "C. Attorney's Fees" in excess of $500,000 and "to be determined", as the case presents for bench trial no component of entitlement to attorney's fees. Defendants' assert that "there is no need for a pretrial ruling on this issue", despite their inclusion of attorney's fees in their Second APS asserted "Damages" and "Legal Issues", because Defendants will decide whether to move for attorney's fees following final judgment. Defendants' Opposition to 84 Lumber Company, L.P.'s Motion in Limine to Preclude Testimony and Evidence of Defendants' Direct and Incidental Damages ("Defendants' Opposition to Motion on Certain Damages"), ECF No. 279 at 1, 3.

Finally, the Court will deny said Motion as to the damages listed as "B.1 Overcharges on Timberlake 13" as the parties have expressed agreement that—although Defendants have filed five separate Counts for breach of construction Subcontracts on five units and no Count with regard to their Subcontract for Timberlake Unit #13—a claim for damages related to Unit #13 is properly before the Court under Count IX of Defendants' Second Amended Counterclaim (ECF No. 44) for improper billings under an 84 Lumber Commercial Credit Application form dated May 9, 1997 (the "1997 CCA"). Cf. Memorandum Opinion on the Parties Multiple Motions and Cross-Motions for Summary Judgment, ECF No. 166, at 11, n. 18.1

II. RELEVANT FACTUAL AND PROCEDURAL HISTORY

The extensively documented factual and legal history in this case arising from disputes between the parties with regard to (a) construction material purchases and (b) sub-contracted construction of housing in Defendants' multi-duplex residential developments — Timberlake Village (hereafter "Timberlake") and Cedar Creek — located in Garrett County, Maryland was set forth by this Court in its Summary Judgment Opinion, ECF No. 166, and has been summarized in relevant part in several lengthy Opinions thereafter, including this Court's February 23, 2017 Memorandum Opinion granting Plaintiff's Motion for Judgment Pursuant to Federal Ruic of Civil Procedure 52(c), ECF No. 245.

The underlying contract documents include the 1997 CCA, and five (5) 84 Lumber "Subcontractor Agreement/Scope of Work" forms (the "Subcontractor Agreements") for three Timberlake projects (Units 8, 11 and 12) and two Cedar Creek projects (Units 1 and 2). Subcontract Agreement paragraph 15 contained, among other things, 84 Lumber's "guarantee" that the work would conform to specifications, comply with laws, and be free from defects in workmanship and materials. Paragraph 15 limited 84 Lumber's "liability hereunder" to the "extent of 84's negligence" and its obligations to "repair or replacement of any defective or nonconforming [w]ork." Mortimer agreed that 84 Lumber was "in no event" liable "for any consequential, indirect, exemplary or punitive damages of any type in connection with any claim under this paragraph." And the paragraph closed with a form language disclaimer of any further express or implied warranty, including warranty of merchantability or fitness for a particular purpose. Id.

For a full discussion of the prior procedural history, including the Court's holdings following a November, 2016 bench trial on Defendants' theories (both prior and last-minute, despite considerations of waiver or estoppel) ohort liability, see ECF No. 245. The Court observes that the limited bench trial was held because the Court's determination of the enforceability of Paragraph 15 as to Subcontract Contract claims "related to/flowing from `defects in workmanship or materials'" rendered a "determination of Defendants' ability to make out the elements of their tort-based counterclaims" more critical. ECF No. 245 at 2-3 (citing the October 11, 2016 Memorandum Opinion on Contractual Damage Limitations (the "Damage Limitations Opinion"), ECF No. 214). The relevant claims documents are:

Plaintiff's April, 2011 Complaint, ECF No. 1, and its claim for breach of contract under the 1997 CCA owing to nonpayment for goods/supplies delivered. Plaintiff's asserted entitlement to attorney's fees was assessed in the March 30, 2016 Memorandum Opinion on the Parties' Multiple Motions and Cross-Motions for Summary Judgment (the "Summary Judgment Opinion") at 4 n. 4, and 6, ECF No. 166. See also ECF NO. 279 at 3, n. 1 (noting that Plaintiff also lists attorneys' fees as a category of damages and has no contractual entitlement thereto).

The Defendants' Second Amended Counterclaim, ECF No. 44, and its remaining claims for breach of contract as to each of five (5) separately subcontracted Timberlake (8, 11, 12) and Cedar Creek (1, 2) units (Counts IV-VIII), and breach of contract as to the 1997 CCA (Count IX). Defendant's asserted entitlement to (a) lost profits and (b) damages flowing from tort liability and thus outside the contractual damage limitations of Subcontract Paragraph 15 have been addressed in ECF No. 214 and ECF No. 245, respectively.2

III. ANALYSIS

A. Preclusion of Evidence for Attorneys' Fees

As Plaintiff notes in its three-page summation of the law on this issue, there is generally no entitlement to attorney's fees in a civil claim absent the parties' contractual agreement to the contrary or another exception, such as statutory provision, wrongful conduct resulting in third party litigation or malicious prosecution. See Plaintiff 84 Lumber Company, L.P.'s Memorandum in Support of its Motion in Limine to Preclude Testimony and Evidence of Defendants' Direct and Incidental Damages ("Plaintiff's Memo in Support"), ECF No. 272, at 3-4 (citing Maryland and District Court cases); see also, e.g., Freedman v. Seidler, 194 A.2d 778 (Md. 19673))("[I]n the absence of special circumstances or statutory requirement, counsel fees are not a proper element of damages in an action for breach of contract.").3

Defendants' response, which does not assert a present contractual or other entitlement to attorney's fees, but asserts a possible post-trial election to move for fees, is inadequate as noted above.4

B. Preclusion of Evidence of Certain "Direct" and "Incidental" Damages

The Court sees little point to yet another reiteration of the provisions of Paragraph 15, the relevant case law, and application of that law to the facts of the case as they relate to the scope of damages for which Plaintiff may be liable under the remaining purely contractual claims. Defendants have been intent on disregarding this Court's holdings in favor of presenting repetitious or novel but patently contra-indicated theories and pleadings.5 The Court therefore refers the parties to the summation of prior relevant rulings provided in ECF No. 272 at 2-4, 8-10, and to the Court's observations and holdings — during 2016 and 2017 — in, e.g., ECF No. 166 at 12, 16; ECF No. 214 at 2, 8, 20, 22-24;6 and ECF No. 245. The Court pauses only to further observe that the theory now before it was not raised in any of the multiple status conferences or exchanges of pleadings. See, e.g., Defendants' Memorandum of Law Regarding Damages Available Under Contract Claims, ECF No. 201 (asserting, e.g., remaining availability of lost profits as "too difficult to strictly categorize" within the excluded-damages language of Paragraph 15).

The Court will address Defendants' new theory that damages which it previously asserted as available via either tort liability or unenforceability of the contractual damages limitations clause are now — subsequent to this Court's decisions precluding their availability under either premise — nonetheless available as something other than "consequential, indirect, exemplary or punitive damages of any type". Defendants contend, despite this Court's Rule 52(c) determination in Plaintiff's favor, that their damages may still include loan interest payments, property taxes, and other "carrying costs" because such damages are "direct" and "incidental" and therefore outside Paragraph 15's contract-claim limitations.

To render this holding most simply, the Court notes that a case which was first cited by Defendants, and has been repeatedly cited by Defendants thereafter, and which this Court has discussed in some detail in prior Opinions, reflects unambiguously the Fourth Circuit's understanding and definition of the plaintiff's "direct" loss to be "the difference in value" between the "as warranted" and "actual" item.7 And its further understanding that the plaintiff's "incidental . . . damages" constituted (i.e., were a type or subset of) "indirect" loss. See Waters v. Massey-Ferguson, Inc., 775 F.2d 587, 590-91 (4th Cir. 1985) (noting that plaintiff "now sought compensation for the direct damages incurred in purchasing a deficient product and more important, compensation for the incidental and consequential damages that he had suffered in substitute planting expenses and in lost profits on his crop" . . . "[t]he jury was sufficiently persuaded by the evidence to award him [compensation] for these indirect losses in addition to its award . . . for the difference in value . . ."). Plaintiff cannot remove — as either "direct" or "incidental" loss — loan payments, taxes, and carrying costs, from the scope of a contractual damage provision excluding "consequential, indirect, exemplary or punitive damages of any type".8

In sum, evidence of non-recoverable damages is appropriately excluded, as the legal standard for its admission has not been met. See ECF No. 272 at 3-6, F.R.E. 401 (defining relevant evidence as contributing to the determination of a "fact that is of consequence"), F.R.E. 402.9 The Court concurs with Plaintiff's observation that "the parties should be focused on streaminlining issues to allow for efficient use" of their trial time, which will be limited. ECF No. 272 at 2. Cf supra n. 1.

IV. CONCLUSION

For the reasons set forth above, the Court will grant Plaintiff's Motion in Limine, ECF No. 271, as to those damages listed in Defendant's June 15, 2017 Second Amended Pretrial Statement, ECF No. 268, as "B. Additional Direct and Incidental Damages" items 2 through 5, and "C. Attorney's Fees". It will deny said Motion as to the damages listed as "B.1 Overcharges on Timberlake 13". An appropriate Order will follow.