Midamerica Construction Management, Inc. v. Mastec North America, Inc.

436 F.3d 1257 (10th Cir. 2006)

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Nature of the Case

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Facts

PathNet hired Ds to help construct the New Mexico and Texas portions of a fiber optic network. On January 31, 2001, Ds hired P as a subcontractor to help install a buried conduit for fiber optic line.

P began performing and Ds made an initial payment of approximately $127,000 to P in March 2001 for work performed in January and February of that year. After PathNet filed for bankruptcy in April 2001, Defendants refused to make any further payments because Ds asserted that they had not received payment from PathNet for the work P performed. P sued Ds contending that Ds owed it approximately $ 1.9 million for work performed under the Subcontract Agreement. The district court granted Ds' motion for summary judgment. It held that the provision in the Subcontract Agreement that provides that 'all payments to Subcontractor by Contractor are expressly contingent upon and subject to receipt of payment for the work by Contractor from Owner,' was unambiguous and makes Ds' receipt of payment for the work from PathNet (Owner) a condition precedent to payment of P. Thus, unless and until Ds receive payment for the work in question from PathNet, Ds had no duty to pay P and P acquires no right to enforce the promise of payment. P appealed.