This case arises out of the construction of a Marriott Corporation hotel in Orlando, Florida. Marriott, the appellee, acted as both the owner and general manager of the project. In that capacity, Marriott contracted with Dasta Construction Company, the appellant, to perform certain portions of the work. After the hotel was built, Marriott brought this suit in the district court to recover payments it had made on Dasta's behalf to Dasta subcontractors and suppliers. Dasta counterclaimed, contending that Marriott not only had failed to carry out its contractual obligations, but also had interfered with Dasta's performance. A jury found for Marriott on its claims and awarded Marriott the sums it had paid Dasta subcontractors and suppliers. On the counterclaim, the jury found for Dasta and awarded it $4,659,390.90. The district court subsequently granted Marriott's motion for judgment notwithstanding the verdict, dismissing Dasta's counterclaim on the merits and limiting Marriott's award to its costs of action. Dasta now appeals, seeking reinstatement of the jury's verdict. Finding no merit in any of Dasta's arguments, we affirm.

In early 1982, Marriott began construction on an elaborate resort complex, or "mega hotel," in Orlando, Florida.1 The Marriott Orlando World Resort ("Resort") was to contain fourteen different building segments, including a twenty-eight story guest tower; numerous convention rooms, restaurants, and ballrooms; and several outbuildings for swimming pools, golf courses, and tennis courts. Due to the size and complexity of Marriott's undertaking--at the time of completion, the Resort was the largest building in terms of square footage in the state of Florida--construction was divided into several distinct projects requiring the coordination of numerous contractors and subcontractors.

Dasta became involved with the Resort in 1983, approximately one year after construction began. At that time, Dasta was one of the five largest building contractors in Kansas City, Missouri, specializing in all types of commercial and industrial construction and handling an average annual contract volume of between $20 and $30 million. Vincent Dasta, the company's president and chairman of the board, possessed advanced degrees in civil engineering and business administration as well as more than twenty-five years of experience in the construction business.

Dasta first learned of the Marriott Resort project through William Hall, the owner of another Kansas City contracting company, Hall-Missouri. Although Dasta had never performed any work for Marriott,2 Hall-Missouri had worked on three Marriott hotel construction projects and was familiar with Marriott's building practices.3 Hall approached Dasta and suggested that the two contractors join forces to solicit work on the Resort. The combination was advantageous for both companies as Dasta possessed the size and experience to handle the large-scale Resort contracts, while Hall-Missouri offered a history of successful working relations with Marriott. In fact, it appeared doubtful that either company would have been capable of winning a contract for the Resort on its own.

On May 4, 1984, Marriott invited Dasta and Hall-Missouri to submit competitive bids for the exterior skin and drywall work on the Resort's guest tower. The majority of the exterior skin work consisted of affixing layers of stucco, plaster, and water-proofing onto the cement block walls of the guest tower. The drywall work consisted of the application of drywall boards and finishing materials to the guest tower's ceilings and inner walls. Case Concrete Contractors had already begun to construct the concrete walls that would provide the basis for the exterior skin at the time that Dasta and Hall-Missouri became involved in the Resort bidding process.

The bid invitation packages for the Resort's exterior skin and drywall projects each contained a set of architectural drawings, a set of plans and specifications, and a list of general conditions that defined the nature of the potential relationship between Marriott and Dasta. The drawings and specifications included in the Resort bids were only between 50 and 80 percent complete,4 however, because the Resort was being built on a "fast track" basis. Under the fast track method, construction on a building begins before a final set of fully coordinated plans is completed. Rather, the architectural plans and specifications are designed and modified as the building's actual construction progresses. The advantage of the fast track method, as opposed to building from plans completed at the outset, is that it enables construction to begin at a much earlier stage in the project. The method's disadvantage results from increased difficulty in scheduling and coordinating the project since the construction progress schedule must be modified to account for constant plan changes. Notwithstanding these difficulties, however, Marriott had employed fast track construction in a number of prior, albeit smaller, hotel construction projects, including the three on which Hall-Missouri had been involved.

In May 1984, after reviewing the bid documents, Vincent Dasta and William Hall conducted pre-bid investigations of the project site in Orlando. During their visit, both men inspected the work in progress, reviewed the project paperwork, and engaged in "fairly lengthy discussion and specific discussion about the sequencing and scheduling of the work" to be done by Dasta. William Hall also participated in a critical series of special planning sessions hosted by Marriott. At these meetings, which lasted several days and which all of the contractors then working on the Resort attended, Marriott and the contractors engaged in detailed discussions about the current state of the Resort construction and the projected construction schedule. At the conclusion of these sessions, an outside planning consultant (who also attended the meetings) converted the information from the meetings into the Resort's Critical Path Method ("CPM").

According to the trial testimony of both Dasta and Marriott, a CPM is a standard construction device used to "plan the activities of a construction project in a logical orderly sequencing manner citing durations for the different activities from the beginning of the job to the end." A CPM is created by dividing the entire project into discrete and quantifiable steps; in turn, each step is allotted an estimated time for completion. Ultimately, each step is arranged into a chronological sequence, thus revealing the anticipated length and structure of the entire construction schedule. In addition to serving as a roadmap for the contractors to determine when and where their work fits into the overall construction sequence, the CPM also assists contractors in assessing their hiring and material purchasing needs.

On June 1, 1984, Dasta and Hall-Missouri (hereinafter referred to jointly as "Dasta") submitted bids under the Dasta moniker for both the exterior skin and drywall contracts. Dasta priced the exterior skin contract on enough "manpower to accomplish that work on an eight-hour day 40-hour basis and be done on time," and submitted the successful low bid price. Dasta was awarded that contract, but failed to win the drywall contract.

Shortly after submitting its bids, Dasta received a copy of the CPM developed at the planning meetings. The CPM essentially restated the scheduling information that Dasta had received during the site visit; Dasta anticipated that the exterior skin work would commence in mid-July 1984 and continue in a logical fashion for fifteen months before concluding in September 1985. The CPM also stated that it was "for [Dasta's] use in scheduling and determining crew sizes and work areas as per General Conditions of the Specifications item 6A [and 6]C, page 5."5

According to Vincent Dasta, the company concluded that the CPM "was a good schedule and adequate to accomplish the exterior skin work in an efficient, production-type manner, working normal hours with optimum crew sizes." On July 2, 1984, Dasta formally contracted with Marriott to perform the exterior skin work for a lump sum price of $3,109,850. All of the documents from the original bid package--including the drawings, specifications, and general conditions--were incorporated into the final contract.

In mid-July, Dasta's construction team arrived at the project site and learned that construction was operating at least five months behind schedule. The delay was caused by the "extremely poor quality" of Case's concrete work, which contributed to a concrete collapse in the Resort's tower area in mid-May. The defective concrete work was of particular concern to Dasta since much of its exterior skin work had to be placed directly onto Case's concrete work, such that any problems with the concrete would translate directly into problems with the exterior skin. Although Dasta had planned "to be working full force" immediately upon arrival at the construction site, the defective concrete prevented it from doing so. Dasta related these concerns to Marriott, which in turn assured Dasta that Case was going to fix the defective work and that Dasta should not worry because Dasta was "not going to be responsible for [any other contractor's problems]."In addition to the faulty concrete, Dasta experienced a number of other difficulties and delays during the prosecution of its contractual obligations. First, Marriott's fast track approach resulted in frequent and significant modifications to both the architectural plans and the progress schedule. These modifications prevented Dasta from proceeding in the orderly sequence that was anticipated by the original CPM, thereby causing Dasta to incur significant additional costs due to inefficiency and under-utilized labor. In total, Marriott issued hundreds of changes to the Resort's drawings and progress schedule.6

Second, Marriott's failure to provide adequate vertical transportation and safety measures placed Dasta further behind schedule. Naturally, Dasta's performance on the upper tower areas depended upon its ability to get men and materials up to its work areas. Dasta's efforts were hampered, however, by a shortage of elevators and hoists and by Marriott's use of the lifts. When Dasta offered to bring its own hoist onto the construction site to increase efficiency, Marriott refused to allow it. Dasta experienced similar delays due to Marriott's belated erection of a safety net required by Occupational Safety and Health Act standards (to catch debris falling from work being done on the tower's upper levels). Although the original progress schedule anticipated that Dasta would begin the tower work upon its arrival in July, Dasta was unable to begin until January 1985, when Marriott finally put up the net.

Despite these indications that performance of its contractual obligations might be more difficult than it originally believed, Dasta gradually undertook greater responsibility on the Resort project. In October 1984, after Case repeatedly failed to correct its faulty concrete work, Marriott and Dasta agreed that Dasta would perform the repairs. Dasta submitted unit prices for the repair work, and Dasta and Marriott drafted a written "Change of Contract" order to encompass the additional work. The procedure for handling the change of contract was provided for in the General Conditions of the original exterior skin contract.7 Dasta also accepted other work assignments from Marriott that were unrelated to Dasta's base contract work and that resulted in more than twenty separate Changes of Contract, increasing Dasta's total compensation by $3,255,591.75.

Moreover, in January 1985, roughly six months after Dasta began working at the Resort, Dasta submitted another competitive bid for the Resort's non-tower drywall contract. Again, Dasta priced its bid on a logical and orderly "production-type manner, working normal hours;" on January 15, Marriott awarded the contract to Dasta for a lump sum price of $1,749,050. Although the drywall contract was a separate contract, its terms and conditions were identical to the exterior skin contract, and both parties treated the two contracts as one at all times.8

On January 23, 1985, one week after Dasta entered into the drywall contract, Marriott hosted a second CPM session. At the meeting, Marriott proposed advancing the Resort completion date by three months, to April 1, 1986. Each contractor was represented at the meeting (including William Hall for Dasta) and each contractor agreed to the acceleration.9 As a result, the new CPM was immediately put into effect, and Dasta continued to perform its contract work.

It eventually became clear, however, that Dasta was not up to the task. In February 1986, as the Resort's completion date drew near, cost overruns resulting from the delays in the Resort progress schedule caused Dasta to run out of money. As a consequence, Dasta could no longer compensate its subcontractors and suppliers. Vincent Dasta met with Marriott on February 3 to discuss "the additional costs Dasta was incurring due to disruption, acceleration, overtime work, increased crew sizes, etc." At that time, Marriott told Mr. Dasta that the important thing was to get the Resort completed in time and that afterwards Marriott would discuss a fair and reasonable settlement. According to Dasta, Marriott instructed Dasta to submit a formal "efficiency claim"10 for its additional costs. Dasta relied on Marriott's assurances and borrowed more than $1.5 million in order to meet its contractual obligations.

Notwithstanding the additional borrowed funds, Dasta remained unable to pay all of its suppliers and subcontractors; accordingly, Marriott made several payments on behalf of Dasta. On February 28, 1986, under Dasta's direction, Marriott paid $292,000 directly to Dasta's subcontractors and suppliers and subtracted an equal amount from the outstanding balance due Dasta on the contracts. Furthermore, on September 24, 1986, after Dasta had left the work site and the Resort was opened to the public, Marriott was forced to make additional payments to Dasta subcontractors and suppliers in order to discharge certain liens that they had recorded against the Resort. The suppliers and subcontractors filed the liens because Dasta had neglected to pay them for services rendered at the Resort.

At approximately the same time, Dasta presented the efficiency claim that Marriott had invited it to submit at the February 3 meeting. Dasta sought several million dollars as compensation for the additional costs it incurred in performing the contract work.11II.

Rather than negotiate or pay Dasta's claim, Marriott filed this suit in the United States District Court for the Middle District of Florida. In its complaint, Marriott sought, first, indemnification from Dasta for the sums it had paid to satisfy the mechanics' liens filed against the Resort by Dasta subcontractors and suppliers, and, second, a declaration that it was not liable for the amount of Dasta's efficiency claim.

On November 4, 1986, Dasta answered Marriott's complaint and filed a counterclaim for $3,933,502.20. In these pleadings, Dasta advanced several theories of law to support its position that it owed Marriott nothing for the sums Marriott had purportedly paid on Dasta's behalf and that it was entitled to recover the damages sought. Among other things, Dasta alleged that (1) at the time Dasta bid the contracts, Marriott misrepresented both the progress of the overall construction and the terms and conditions of Dasta's undertaking, misrepresentations that induced Dasta substantially to underbid the job; and (2) Marriott breached the contracts by unduly delaying Dasta's performance.12 At the pre-trial conference, the district court reduced Dasta's numerous theories of recovery to a claim for breach of contract.

The case was tried to a jury. After eight days of trial, the jury found, by special verdict, that Marriott was entitled to recover the $369,402.02 it had paid Dasta suppliers and subcontractors and that Dasta was entitled to recover $2,452,311.00, the unpaid balance due on the contracts, and $2,207,079.90, the damages Dasta suffered by reason of Marriott's deliberate interference with Dasta's performance of the contracts, along with accumulated interest.

Marriott thereafter moved for either judgment n.o.v.13 or, in the alternative, a new trial. The court gave Marriott judgment, set aside the jury's verdict for Dasta, and awarded Marriott the sum of $369,402.02. In an opinion accompanying its ruling, the court observed that there was no evidence that Marriott had committed the contractual breaches Dasta had alleged or that Marriott had interfered, in violation of its contractual duty to the contrary, with Dasta's performance of the contract work.

Dasta asks us to reinstate the jury's verdict and to direct the district court to enter judgment in conformance therewith, or, alternatively, to order a new trial. According to Dasta, the district court properly submitted its breach of contract claim to the jury; the court erred, however, when it held, on motion for judgment n.o.v., that the contract documents precluded Dasta's recovery. Whether the contracts precluded Dasta's claims for the additional and unanticipated expenses it incurred in performing the work is a pure question of law, to be answered by examining the language of the contracts themselves.14 Zaklama v. Mount Sinai Medical Ctr., 906 F.2d 650, 652 (11th Cir.1990). Whether Marriott fraudulently or negligently misrepresented the progress of the overall construction of the Resort or the terms and conditions of Dasta's undertaking, however, are questions of fact, to be answered by examining the evidence adduced at trial in the light most favorable to Dasta. See, e.g., Norton v. Snapper Power Equip., 806 F.2d 1545, 1548 (11th Cir.1987).

Our analysis of the contract documents in this case leads us to the inescapable conclusion that Dasta has no claim, under those documents, for the injuries it purportedly suffered at the hands of Marriott. Our analysis of the evidence leads us to the identical conclusion: Dasta has no claim under any of the theories of recovery it advances.

The Resort, although not an unique undertaking for Marriott, represented one of Marriott's largest and most ambitious construction projects. Inherent in the scale and complexity of the project was the potential for delay in the various phases of its construction. This potential was enhanced by Marriott's use of the fast track construction method, such that construction began with neither a final set of plans and specifications nor a firm progress schedule or completion date. Presumably, contractors involved with the Resort project made provision for the risks presented by such contingencies in two ways: first, by setting their bid prices high enough to absorb the "additional costs" they might incur in performing the work (including the costs Dasta seeks to recover in this case); and, second, by negotiating contract terms and conditions designed to minimize such costs. In the present case, the parties thoroughly addressed and allocated the risks of delay inherent in the Resort project.

In the General Condition entitled PROGRESS SCHEDULE, which the parties incorporated into their contracts, Marriott "specifically reserve[d] the right to modify the progress schedule as required by conditions of the work," while Dasta, for its part, "agree[d] to comply with the progress schedule established by the Owner, or any revision thereof." General Condition 6A.15 Further, General Condition 6C provided that:

[s]hould the Contractor fail to comply with the progress schedule, or in the Owner's opinion, otherwise fail, refuse or neglect to supply a sufficient amount of labor or material in the prosecution of the Work, Owner shall have the right to (1) direct Contractor to furnish such additional labor and/or materials as may, in the Owner's opinion, be required to comply with the progress schedule or otherwise diligently prosecute the work, or (2) furnish such additional labor and/or materials as may be required to comply with said schedule. Any costs incurred by Owner pursuant to the exercise of its rights under this paragraph shall be borne by the Contractor and shall not increase the Contract Sum.

(Emphasis added.) In addition to the foregoing, Article III, section 3.1 of both the exterior skin and the drywall contracts, entitled TIME OF COMMENCEMENT AND COMPLETION, reiterated Marriott's right to modify the progress schedule:

TIME IS OF THE ESSENCE OF THIS AGREEMENT. The Owner may sustain financial loss if the project or any part thereof is delayed because the Contractor fails to perform any part of the work in accordance with the contract documents, including, without limitation, a failure to comply with the schedule for this project, or any revision thereof, established by Owner. The Contractor shall begin the work at the time directed by the Owner and perform its obligations under this agreement with diligence and sufficient manpower to maintain the progress of the work as scheduled by Owner, without delaying other contractors or areas of work. At the request of the Owner, the Contractor shall perform certain parts of the work before other parts, add extra manpower, or order overtime labor in order to comply with the schedule (or any revision thereof), all without any increase in the contract sum.

(Emphasis added.) Finally, in Article III, section 3.2, Dasta certified that "the required materials and manpower [would be] available to prosecute the work in accordance with such schedule." In short, Marriott had complete discretion to adjust the schedule as well as to demand that Dasta comply with such adjustments without additionally compensating Dasta.

In arriving at its bid prices, Dasta had the opportunity to account for Marriott's broad powers, as well as to compensate itself for the risk of delay, by increasing its prices fairly to reflect the risks it was assuming. Article V, section 5.2, addressing the Contract Sum, specifically advised Dasta that its price should include "all increases in costs, foreseen or unforeseen, including ... labor and materials" and that "[a]ll loss or damage arising from any of the work through unforeseen or unusual obstructions, difficulties or delays which may be encountered in prosecution of the work, or through the action of the elements shall be borne by Contractor." Under this pricing arrangement, known as lump sum pricing, Dasta bore the risks associated with underestimating its price or failing to account for unexpected additional costs.16 At the same time, however, Dasta would reap all of the benefits of any cost savings, in the event that the Resort was completed at an earlier date, or in a more efficient manner, than originally anticipated.

Dasta was familiar with this form of contract pricing. Dasta was also aware of both the potential for delay in this project and the fact that it would not be entitled to demand additional compensation for delay from Marriott upon completion. Despite this knowledge, Dasta priced its contracts under the unrealistic expectation that there would be no modifications to the progress schedule and that the work would be prosecuted, according to Vincent Dasta, "in an efficient production-type manner, working normal hours with optimum crew sizes."

Notwithstanding that Dasta, in formulating its bid prices, failed to protect itself from the delays occasioned here, it still protected itself, in the contracts, against unforeseen delays beyond its control, including those caused by the "act or neglect" of Marriott or Marriott's subcontractors or from "changes ordered in the scope of the work." A provision in the contracts, known as a "no damage for delay" clause, gave Dasta the specific right to seek an extension of its time for performance in the event of delay; Dasta, as consideration for this right, agreed not to seek damages for such delay. The no damage for delay clause, located in General Condition Item 7A, states as follows:

If the Contractor is delayed at any time in the progress of the Work by any act or neglect of Owner or by any contractor employed by Owner, or by changes ordered in the scope of the Work, or by fire, adverse weather conditions not reasonably anticipated, or any other causes beyond the control of the Contractor, then the required completion date or duration set forth in the progress schedule shall be extended by the amount of time that the Contractor shall have been delayed thereby. However, to the fullest extent permitted by law, Owner and Marriott Corporation and their agents and employees shall not be held responsible for any loss or damage sustained by Contractor, or additional costs incurred by Contractor, through delay caused by Owner or Marriott Corporation, or their agents or employees, or any other Contractor or Subcontractor, or by abnormal weather conditions, or by any other cause, and Contractor agrees that the sole right and remedy therefor shall be an extension of time.17

In order to receive an extension of time, however, Dasta was obliged to present Marriott with a legitimate request for an extension of time.18 In addition to the no damage for delay clause located in General Condition Item 7A, the contracts between Marriott and Dasta contained an independent clause, General Condition Item 7B, that required Dasta to submit a written request detailing the cause and length of the delay, as well as the length of the requested extension.19 The condition also required that the request be submitted within seven days of the commencement of the delay.

The utility of a written request, or its functional equivalent, is that it would have provided Marriott with a meaningful opportunity to evaluate the legitimacy of Dasta's claim, and to determine whether Dasta's request should be honored or rejected. This notice requirement was particularly important because Dasta was only entitled to recover damages if Marriott's refusal to grant a time extension was wrongful. See Pertun, 918 F.2d at 919-20 (refusing to enforce no damage for delay clause where owner prevented request for extension by wrongful and premature termination of contract).

Finally, assuming arguendo, that Dasta made a legitimate request for an extension of time, as required under the contracts in this case, and that Marriott subsequently refused to grant the extension, Florida law would not permit the no damage for delay clause to bar Dasta's recovery if the delays were occasioned by Marriott's fraud, concealment, or active interference with Dasta's performance under the contract. Seminole, 828 F.2d at 675; see also Southern Gulf, 238 So. 2d at 459 (no damage for delay clause ineffective where delay is knowing and sufficiently egregious); McIntire v. Green-Tree Communities, Inc., 318 So. 2d 197, 199-200 (Fla. 2d Dist.Ct.App.1975) (delay clause ineffective where "circumstances which caused the delay were brought about by [owner] and were even foreseen but concealed by [owner] when the contract was made"). These exceptions to the no damage for delay clause are premised upon an "implied promise and obligation not to hinder or impede performance." Newberry Square Dev. Corp. v. Southern Landmark, Inc., 578 So. 2d 750, 752 (Fla. 1st Dist.Ct.App.1991).

Thus, under the terms of the contracts, Marriott had absolute authority to modify the construction schedule, while Dasta was obligated to abide by Marriott's instructions. Although these terms may seem one-sided, Dasta was aware of these provisions at the time it bid the contracts, and had the opportunity to increase its proposed contract prices to account for the risks it would be assuming. Dasta failed to seize upon this opportunity, and, in hindsight, made a pair of improvident bargains from which we are powerless to grant relief. It is not the function of the courts to "rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain." Steiner v. Physicians Protective Trust Fund, 388 So. 2d 1064, 1066 (Fla. 3d Dist.Ct.App.1980) (quoting Beach Resort Hotel Corp. v. Wieder, 79 So. 2d 659, 663 (Fla.1955)).

It is unnecessary to determine whether Marriott actively interfered with Dasta's performance, because Dasta waived the application of the no damage for delay clause by failing to make a proper request for an extension of time as required by the contracts.20 At trial, Vincent Dasta testified, on direct examination, as follows:

Q: Now Mr. Dasta, at any time in the course of this job did you personally submit a written request to Marriott for an extension of time?

A: No, only verbal.

Q: To your knowledge, did Bill Hall [Dasta's project executive] or Ed Matthews [Dasta's project manager] submit a written request for an extension of time?

A: They may have. I don't have direct knowledge of it.

Q: Do you recall ever seeing [a] written request for an extension of time?A: I may have recalled seeing one, yes, but I can't tell you when I saw it or when it was written. But, I may have.

Obviously, this testimony was insufficient to demonstrate that Dasta presented Marriott with a written request for an extension of time.21 Moreover, none of Dasta's verbal communications to Marriott was sufficient to constitute the functional equivalent of a written request for an extension of time. Vincent Dasta testified that he and other Dasta employees "made numerous verbal comments, notices, however you want to call them or portray them" that Dasta was being delayed by the conditions of the job. The exchanges referred to by Dasta, however, amounted to little more than grumblings and complaints by Dasta that were met with generalized assurances from Marriott that Dasta would not be held responsible for any delays. In these exchanges, Dasta did not identify, with any degree of particularity, the cause or the length of any of its alleged delays. As such, these comments and notices by Dasta were legally insufficient to activate the protection of the no damage for delay clause.22

Dasta argues that it never requested an extension because Marriott had indicated that "no extensions of time were to be given on this job." Despite the knowledge that Marriott had adopted a position that was wrongful under the conduct, Dasta failed to take any affirmative steps toward enforcing its legitimate contractual right to request an extension. Instead, Dasta decided to accept Marriott's generalized statements because, according to Vincent Dasta, it "relied on another portion of the contract which specifically states that there is a trust and confidence relationship between parties and that ... both parties have to have mutual trust and confidence in each other."

We are not persuaded by Dasta's explanation.23 In the face of a clear contractual provision directly addressing its right to relief in the given situation,24 Dasta, in light of its sophistication and experience, simply was not permitted to rely on general notions of good faith and mutual fair dealing. Moreover, there is no indication that Marriott's actions were wrongful or in bad faith. Although Dasta might have been entitled to an extension of time if it was in fact delayed by Marriott's actions, Marriott had a contractual right to engage in the course of conduct it pursued. Despite Dasta's complaints to the contrary, the exercise of a legitimate contractual right simply does not amount to a wrongful act.25 This fact, along with Dasta's failure to request any extensions of time, is fatal to Dasta's claim for damages due to delay, "impact," and "inefficiency."26 In short, the contracts defined the only remedy available to Dasta, and Dasta failed to pursue that remedy.

The final issue for our determination concerns Dasta's claim of entitlement to the outstanding amounts on its contracts with Marriott. Although the jury found that "the amount of the unpaid contract balance that Dasta is entitled to recover" is $2,452,311.00, the parties agree that the actual amount owed Dasta on the contracts totals $509,358.49. Also undisputed is the fact that Dasta expressly authorized Marriott to reduce the amount owed under the contracts to reflect the $292,000 in payments that Marriott made directly to Dasta subcontractors and suppliers. Thus, both parties agree that the final amount left owing Dasta on the contracts totals $217,358.49.27

In addition to the $292,000 in payments credited by Dasta, however, Marriott demonstrated at trial that it paid an additional $278,114.2828 directly to Dasta subcontractors and suppliers in order to extinguish liens placed on the Resort after Dasta failed to compensate them for their work on the project. Marriott asserts, and the district court found, that this amount should be applied as a set-off to the outstanding contract balances owed to Dasta. We agree.

According to General Condition Item 25, Dasta agreed not to permit its subcontractors and suppliers to place any liens on the Resort property. Moreover, "in the event that any such lien shall be filed, [Dasta] agrees to take all steps necessary and proper for the release and discharge of such lien ... and in default of performing such obligation, agrees to reimburse the Owner, on demand, for all monies paid by Owner in releasing, satisfying, and discharging of such liens."

Accordingly, Dasta was obligated to remove all mechanics' liens placed on the Resort by its suppliers and subcontractors. Dasta failed to abide by this provision, and because the additional amounts paid by Marriott exceed the outstanding balances owed Dasta, Marriott is entitled to set-off the entire remaining amount of the outstanding contract balances.29

Dasta's failure to comply with the contractually-provided measures for relief bars Dasta from recovering for its delay, impact, and inefficiency damages. Dasta also cannot recover its outstanding contract balances because those amounts were offset by payments made by Marriott on Dasta's behalf. Accordingly, the district court's grant of judgment notwithstanding the verdict is AFFIRMED.

IT IS SO ORDERED.

I agree with the majority's holding that the trial court properly interpreted the no-damages-for-delay clause of the contract. I join the majority and would affirm on this issue if it were the only issue before this court for consideration. However, because the issue of whether Dasta has established a recognized exception to enforcement of the no-damage-for-delay clause is also before the court, I cannot concur with the majority opinion. It fails to address the exception.

I dissent from the majority opinion because the majority affirms the district court's entry of judgment notwithstanding the verdict which was based in part upon the finding that there was insufficient evidence to support the jury's factual conclusion that Marriott deliberately interfered with Dasta's performance. The majority does not address the issue of deliberate interference with Dasta's performance, which would constitute a legally permissible exception to the enforcement of the no-damages-for-delay clause against Dasta. Rather, the majority holds that it is unnecessary to determine whether Marriott actively interfered with Dasta's performance, because, as a preliminary matter, Dasta failed to request an extension of time, as required by the contract's no-damage-for-delay clause.1 In my opinion, the majority's holding that the district court correctly found that Dasta failed to seek its contractual relief of an extension of time is not determinative of this entire case.2 The majority's conclusion on this single issue does not obviate its duty to review the district court's entry of judgment notwithstanding the verdict on the issue of the exception, wherein the district court substituted its version of the facts for the jury's verdict that Marriott deliberately interfered with Dasta's performance under the contract. The real issue of contention with the majority opinion is that the undersigned would hold that the exceptions recognized by Florida law take Dasta's right to recover damages outside of the contract and do not require Dasta to make a written request for extension of time in order to recover damages. Therefore, Dasta's failure to comply with the contractual requirements regarding delay does not bar recovery for damages caused by deliberate interference. While the majority contends that my position would frustrate the bargained-for agreement of the parties, I maintain that the majority's position frustrates Florida law which does not require a written request for an extension of time in order to recover damages for deliberate interference.

The Jury's Verdict on Liability Should Stand

The subject contract contained an enforceable no-damages-for-delay clause which, as the majority correctly notes, limited Dasta's remedy under the contract to an extension of time and further prohibited Marriott's liability to Dasta for money damages sustained as a result of delays occasioned by Marriott.3 However, it is well settled in Florida that a no-damages-for-delay clause does not preclude recovery for delays resulting from a party's fraud, concealment, or active interference with performance under the contract. See United States for the Use and Benefit of Seminole Sheet Metal Company v. SCI Inc., 828 F.2d 671 (11th Cir.1987); C.A. Davis, Inc. v. Miami, 400 So. 2d 536 (Fla. 3d Dist.Ct.App.1981), pet. for review dismissed 411 So. 2d 380 (Fla.1981); McIntire v. Green-Tree Communities, Inc., 318 So. 2d 197 (Fla. 2d Dist.Ct.App.1975). Therefore, even where a contract contains a no-damage-for-delay clause, money damages may be awarded upon a showing of "knowing delay" which is sufficiently egregious, see Southern Gulf Utilities Inc. v. Boca Ciega Sanitary District, 238 So. 2d 458 (Fla. 2d Dist.Ct.App.) cert. denied, 240 So. 2d 813 (Fla.1970), or upon a showing of willful concealment of foreseeable circumstances which impact timely performance. See McIntire v. Green-Tree Communities, Inc., 318 So. 2d at 199. As noted by this Circuit in Seminole Sheet Metal, these valid exceptions to the no-damages-for-delay clause are consistent with and predicated upon a contracting party's implied promise not to hinder the other party's ability to perform its contractual obligation. Seminole Sheet Metal, 828 F.2d at 675.

Therefore, while no-damages-for-delay clauses are enforceable under Florida law, Florida also recognizes certain exceptions to their enforceability. Where, like in the case before us, facts and circumstances constituting an exception exist, the no-damages-for-delay clause is rendered unenforceable. Despite the bar to enforcement created in this case by the well recognized deliberate interference exception, the majority mistakenly enforces the terms of the no-damages-for-delay clause to Dasta's detriment and in such a way so as to preclude the applicability of any recognized exception to the clause's enforceability. In my opinion, the majority's failure to consider the applicability of the deliberate interference exception is error.

On this issue, the majority holds that "where a legitimate request for an extension is made and subsequently refused, a no damages for delay clause will not bar recovery where the delays were caused by the owner's fraud, concealment, or active interference with performance." [emphasis added to call attention to that portion of the holding with which I take issue]. In support of this legal conclusion, the majority cites Seminole Sheet Metal and Southern Gulf. Neither case supports this holding.4 Specifically, neither case requires as a condition precedent to recovery pursuant to a legally recognized exception to the enforcement of a no-damages-for-delay clause, that a complaining party make a "legitimate request for an extension." In Southern Gulf, the court noted that a contractor seeking to overcome the damages prohibition of such a clause cannot "sit idle," but the court fell short of requiring that any formal request for an extension was required in order to prevail under the "knowing delay" exception.5 Southern Gulf, 238 So. 2d at 459. Accordingly, neither case cited by the majority holds that in order for Dasta to recover pursuant to the deliberate interference exception, it was required to seek an extension through written notice. This was required of Dasta only if it sought recovery through the contract itself.6

Notwithstanding Dasta's failure to request a written extension of time as required by the very clause which is rendered unenforceable by the recognized exception and the facts of this case, I believe it is necessary to determine whether the record supports the jury's finding that Marriott actively interfered with Dasta's performance, thereby creating an exception to enforcement of the clause against Dasta.7 Accordingly, I am constrained to dissent from the majority opinion and to review the district court's order accordingly.

Upon proper instruction of the above-referenced law, the jury determined as a matter of fact that Marriott deliberately interfered with Dasta's performance, thereby causing delay/acceleration or impact damages. Notwithstanding the jury's factual findings, the district court held that the facts of this case do not support a claim of concealment, fraud, or active interference. For the following reasons I cannot agree that the record before us supports the majority's affirmance of the district court's substitution of its own judgment for the verdict of the jury.

The district court may grant a judgment notwithstanding a verdict if the record reveals either (a) an absence of substantial evidence supporting the jury's verdict, or (b) substantially undisputed and uncontroverted evidence supporting only a legal conclusion contrary to the result reached by the jury. Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525 (11th Cir.1989).

Upon de novo review of this record, I cannot agree with the district court that the record lacked substantial evidence to support the jury's verdict. Marriott's six month failure to erect a safety net in accordance with federal regulations, its failure to expeditiously resolve problems with the defective concrete work upon which Dasta was to construct exterior skin, and its failure to either timely provide adequate vertical transportation as promised or to permit Dasta to supply its own vertical transportation, not only deliberately hindered Dasta's performance but effectively made it virtually impossible for Dasta to commence work as scheduled in July, 1984. Each of these facts, standing alone, constitutes substantial evidence to support the jury's finding of deliberate interference. When they are viewed collectively, they surely constitute knowing delay which is sufficiently egregious to support the jury's verdict. Both this conclusion and the jury's verdict are further supported by the unreasonable and undue delay occasioned by Marriott's bad faith failure to timely address and cure the problems causing the initial delay. Accordingly, I would reverse the district's court's entry of judgment notwithstanding verdict in favor of Marriott on the deliberate interference claim, and I would direct the district court to enter judgment in favor of Dasta as to this liability issue.

Reinstatement of the Jury's Verdict on Damages Would Be Erroneous

In this appeal, Dasta also seeks reinstatement of the jury's verdict. Notwithstanding my foregoing conclusions regarding liability, I hold that reinstatement of the jury's damage verdict would be erroneous. Upon finding that Marriott deliberately interfered with Dasta's performance, the jury made the following findings regarding damages: 1) there was a contract balance owed by Marriott to Dasta of $2,452,311.00; 2) that Marriott paid to subcontractor's and suppliers on Dasta's behalf $369,402.02; 3) that Dasta was entitled to recover on its delay/acceleration/impact claim $2,207,079.90.8 Contending that the jury's interrogatory verdict was hopelessly inconsistent and that such inconsistencies could not be resolved without resorting to speculation, Marriott alternatively requested a new trial. I agree that the verdict is hopelessly inconsistent and I would further hold that the verdict is contrary to the great weight of the evidence, thereby warranting a new trial on the issue of damages.

The jury verdict identifies $2,452,311.00 as "the amount of unpaid contract balance that Dasta is entitled to recover." However, Dasta's own Exhibit 182 and its testimony regarding the final accounting of its contracts with Marriott was that the contract balance was $217,358.49.9 Clearly, no basis exists in the record to support the jury's verdict regarding the amount owed by Marriott to Dasta under the contracts and the jury verdict is, therefore, contrary to the great weight of the evidence.

Further, as noted above, despite the jury's attempted delineation of separate amounts of damages as requested in the interrogatory verdict form, both parties suggested that the two separate figures--the amount of damages due under the contracts and the amount due from the delay/acceleration/impact claim--should not be added together to determine the total amount due to Dasta from Marriott. Apparently urging the court to simply ignore the jury's award of damages on the delay/acceleration/impact claim, Dasta suggested that the amount of the verdict should be $2,452,311.00, the amount the jury erroneously deemed to be due and owing to Dasta under the contracts, plus pre-judgment interest. Dasta's attempt to tailor the verdict in this way would require speculation as to the jury's intent and would further require that this court give effect to a verdict which is clearly not supported by record evidence. Marriott's suggestion that the sums not be added together is an equally arbitrary attempt to reconcile an obviously inconsistent verdict.

It would appear from the verdict form that the jury mistakenly totalled sums for each claim and then duplicated the award of damages on each claim. However, because neither this court nor the district court has any way of knowing what amount the jury attributed to each claim or how exactly it arrived at these inconsistent and factually unsupported verdicts on damages, I would remand the matter to the district court to hold a new trial on the issue of damages. Ard v. Southwest Forest Industries, 849 F.2d 517, 520 (11th Cir.1988) (a new trial may be granted where the jury verdict is contrary to the great weight of the evidence or will result in a miscarriage of justice).