     11-1975
     In Re: WorldCom, Inc.


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 8th day of March, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                DENNY CHIN,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       IN RE: WORLDCOM, INC.
14
15       WALDINGER CORPORATION,
16                Creditor-Appellant,
17
18                    -v.-                                               11-1975
19
20       WORLDCOM, INC.,
21                Debtor-Appellee.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:                        Bennette D. Kramer, Schlam Stone
25                                             & Dolan LLP, New York, N.Y.;
26                                             James B. Cavanagh (on the
27                                             brief), Lieben, Whitted,

                                                  1
 1                               Houghton, Slowiaczek & Cavanagh,
 2                               P.C., Omaha, Neb.
 3
 4   FOR APPELLEES:              Mark S. Carder, Stinson Morrison
 5                               Hecker LLP, Kansas City, Mo.;
 6                               David C. McGrail (on the brief),
 7                               McGrail & Bensinger LLP, New
 8                               York, N.Y.
 9
10        Appeal from a judgment of the United States District
11   Court for the Southern District of New York (Sullivan, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the judgment of the district court be
15   AFFIRMED.
16
17
18        The Waldinger Corporation (“Waldinger”) appeals the
19   affirmance of the bankruptcy court’s (1) reclassification of
20   its claim against WorldCom, Inc. (“WorldCom”) as unsecured
21   and (2) quantum meruit calculation, as modified by the
22   district court. We assume the parties’ familiarity with the
23   underlying facts, the procedural history, and the issues
24   presented for review.
25
26        “In an appeal from a district court’s review of a
27   bankruptcy court decision, we review the bankruptcy court
28   decision independently, accepting its factual findings
29   unless clearly erroneous but reviewing its conclusions of
30   law de novo.” In re AroChem Corp., 176 F.3d 610, 620 (2d
31   Cir. 1999).
32
33        “A person who furnishes services or materials pursuant
34   to a real estate improvement contract has a construction
35   lien . . . to secure the payment of his or her contract
36   price.” Neb. Rev. Stat. § 52-131(1). “To create a
37   contract, there must be both an offer and an acceptance;
38   there must also be a meeting of the minds or a binding
39   mutual understanding between the parties to the contract.”
40   Tilt-Up Concrete, Inc. v. Star City/Federal, Inc., 255 Neb.
41   138, 147, 582 N.W.2d 604, 610 (1998). The bankruptcy court
42   found that WorldCom did not assent to the installation of
43   three air handling units. Waldinger fails to show that this
44   finding is clearly erroneous.1 Although WorldCom may have

         1
           “Whether a contract exists is a question of fact.”
     Gerhold Concrete Co. v. St. Paul Fire & Marine Ins. Co. , 269
                                   2
 1   assented to its pre-installation preparations and to its
 2   upgrade of a fourth unit, Waldinger does not show that the
 3   bankruptcy court clearly erred in holding that there was no
 4   meeting of the minds to contract for this scope of work, or
 5   the price to be paid for it. Cf. Tilt-Up Concrete, 225 Neb.
 6   at 146-48, 582 N.W.2d at 610-11 (finding a contract--even
 7   though the parties did not agree on the price of some
 8   “extras” to be performed by the contractor--because the
 9   parties “had a meeting of the minds sufficient to establish
10   a lump-sum contract for [the contractor’s] normal scope of
11   work, plus the extra . . . work”).
12
13        The bankruptcy court did not clearly err in excluding
14   salary paid to a Waldinger manager and Waldinger’s overhead
15   from its quantum meruit calculation. Waldinger did not
16   establish that either was an actual cost incurred in the
17   project. See S. A. Sorenson Constr. Co. v. Broyhill, 165
18   Neb. 397, 406, 85 N.W.2d 898, 904 (1957) (denying recovery
19   for a supervisor’s work when there was “no evidence as to
20   the amount required or reasonable value”). The bankruptcy
21   court did not err in excluding Waldinger’s projected profits
22   from its quantum meruit calculation. See Gee v. City of
23   Sutton, 149 Neb. 603, 609, 31 N.W.2d 747, 751 (1948)
24   (“Generally, the courts will not allow profits which might
25   have been obtained if the contract had been legal and valid
26   . . . but confine[] recovery to such sum as will reasonably
27   compensate the party whose services or property have been
28   devoted to the advantage of the other.”).
29
30        Finding no merit in Waldinger’s remaining arguments, we
31   hereby AFFIRM the judgment of the district court.
32
33                              FOR THE COURT:
34                              CATHERINE O’HAGAN WOLFE, CLERK
35
36




     Neb. 692, 696, 695 N.W.2d 665, 670 (2005); see also Connolly
     v. Clark, 457 F.3d 872, 875 (8th Cir. 2006).
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