Precedents Cited

The court relied on several precedents to guide its decision, particularly emphasizing the principles surrounding the forfeiture of arguments not timely raised and the enforceability of contractual amendments.

• Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36 (2d Cir. 2012): Established that arguments not raised in a timely manner are generally not considered on appeal unless exceptional circumstances justify their late introduction.
• Off. Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147 (2d Cir. 2003): Affirmed that broad discretion exists to consider untimely arguments but stressed that such discretion is rarely exercised without compelling reasons.
• Doe v. Trump Corp., 6 F.4th 400 (2d Cir. 2021): Applied the forfeiture principle, highlighting that without a valid reason for not raising an argument timely, parties lose the ability to present it on appeal.
• ALLIANZ INS. CO. v. LERNER, 416 F.3d 109 (2d Cir. 2005): Indicated that exceptional cases where manifest injustice might occur could warrant consideration of untimely arguments.

Legal Reasoning

The court’s reasoning was twofold: first, addressing E&T's argument that the March 8, 2019 revision to the subcontract was not enforceable due to its lack of a signed agreement, and second, affirming that E&T breached the subcontract by not fulfilling its obligations under the revised schedule.

• Forfeiture of Untimely Arguments: E&T attempted to argue post-trial that the unsigned March 8 letter was not part of the subcontract, a point they failed to raise earlier. Citing precedents, the court determined that E&T had forfeited this argument by not presenting it before or during the trial, adhering to the principle that parties must present all relevant arguments and evidence timely.
• Enforceability of Informal Modifications: The court examined the treatment of the March 8 letter throughout the contractual relationship, noting E&T's acceptance and reliance on the revised schedule. Testimonies and documentation indicated that both parties acted as if the letter was binding, thereby enforcing its terms despite the lack of formal signatures.
• Breach of Contract: The court upheld the finding that E&T's failure to clear the construction site as stipulated in the March 8 letter impeded NYR's ability to deliver and install the custom windows, constituting a breach of the subcontract. This breach nullified the prerequisite for Talisman's obligation to pay the performance bond.

Impact

This judgment underscores the importance of timely and consistent argument presentation in litigation. It emphasizes that parties cannot alter their positions on appeal without just cause, reinforcing the need for diligence in pre-trial and trial proceedings.

Moreover, the case illustrates the enforceability of informal contract modifications when parties consistently act in reliance on such modifications, even in the absence of formal signatures. This has broader implications for contract law, highlighting that the conduct of the parties can substantiate the binding nature of additional terms or amendments.

Future cases involving subcontract modifications and performance bonds will likely reference this decision, particularly regarding the necessity of adhering to procedural rules and the interpretation of contractual amendments based on the parties' conduct.