Full Opinion

RENDERED: OCTOBER 23, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1065-MR SCOTT EXCAVATING, INC. APPELLANT APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE COLE ADAMS MAIER, JUDGE ACTION NO. 18-CI-00706 MENARD, INC. APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND CETRULO, JUDGES. CETRULO, JUDGE: An excavation contractor, Scott Excavating, Inc. (“Scott Excavating”), appeals an order and judgment of the Madison Circuit Court, entered after a three-day bench trial, awarding remediation damages to Menard, Inc. (“Menards”) and denying Scott Excavating’s request for additional compensation for unpaid change orders, retainage, and the remaining contract balance. Finding no reversible error, we affirm. BACKGROUND & PROCEDURAL HISTORY In January 2017, Menards purchased land in Richmond, Kentucky for a new retail store location. In March 2017, Menards entered into a construction contract (“2017 Contract”) with Scott Excavating for the construction and installation of storm and sanitary sewers. The total estimated cost of the contract was $450,000, but by 2018, Menards had paid Scott Excavating a total of $867,469. The increase was due, in part, to rock excavation work (“rock work”) billed in addition to the original contract amount. The parties agree Scott Excavating worked on the Menards’s jobsite throughout the remainder of 2017. In December 2017, Loren Wayne Richmond, an employee of Scott Excavating, died when a trench he was working in collapsed at the jobsite. In January 2018, Menards ceased further payments to Scott Excavating due to the accident and what it considered as Scott Excavating’s unsatisfactory and incomplete work. Scott Excavating’s owner, Scott Thomas, later testified that he was informed of Menards’s decision to stop payments, but – presumably believing payments could or would resume – continued to work on the jobsite through April 2018. After Scott Excavating left the jobsite in April 2018, the site remained inactive until March 2020 when Menards hired Flynn Brothers -2- Contracting, Inc. (“Flynn Brothers”) for remediation and completion of the storm sewer work. Menards paid Flynn Brothers $481,196. In December 2018, Loren Wayne Richmond’s estate filed suit against Menards and Scott Excavating, alleging both companies acted negligently and failed to comply with safety regulations. The estate asserted Scott Excavating failed to maintain workers’ compensation insurance, and Menards failed to verify its subcontractor’s insurance before proceeding with work. Menards asserted crossclaims against Scott Excavating seeking damages related to breach of contract, specifically for Scott Excavating’s failure to complete the project and for its failure to carry workers’ compensation insurance as required by the contract. Menards sought compensatory damages of $481,196 (the total paid to Flynn Brothers) for: 1) breach of contract; 2) fraud in the inducement; 3) negligent misrepresentation; and 4) intentional misrepresentation. Scott Excavating filed competing crossclaims against Menards and sought compensatory damages in the amount of $462,031 for: 1) breach of contract; and 2) claim for declaratory judgment to enforce materialmen’s lien on the Menards’s property. The damages sought by Scott Excavating included sums owed for unpaid change orders, the remaining balance owed under the contract, -3- and retainage held by Menards. The trial court bifurcated the contract claims from the estate’s personal injury claims.1 In April 2023, as the root of this action, Menards’s and Scott Excavating’s contract claims proceeded to a three-day bench trial. Menards called James Carlson, assistant general manager and project lead for the Richmond jobsite (“Manager Carlson”); David Coffman, project manager for Flynn Brothers (“Remediator Coffman”); and Todd Johnson, planning and construction controller for Menards (“Controller Johnson”). Scott Excavating called Dwayne Wheatley, an engineer from Abacus Engineering, and its owner, Scott Thomas. Much of the testimony conflicted, but the parties’ main disputes involved rock work, and the condition of 96 feet of sewer pipe installed by Scott Excavating. In January 2025, the trial court entered extensive, detailed findings of fact, conclusions of law, and judgment (“2025 Judgment”). Ultimately, in its 2025 Judgment, the trial court determined: (a) Menards was entitled to damages for remediation costs in the amount of $481,196; and (b) Scott Excavating did not 1 In October 2018, Loren Wayne Richmond’s estate filed a workers’ compensation claim. After discovering Scott Excavating did not have workers’ compensation coverage on the date of the accident, Menards was joined as a party defendant in that action. In August 2020, the Kentucky Department of Workers’ Claims awarded the estate a workers’ compensation death benefit of $106,629 and found Menards liable for that payment. Eventually, by a separate order, the trial court granted summary judgment on the workers’ compensation issue – allowing Menards to recover the $106,629 from Scott Excavating – which was not contested by Scott Excavating. -4- establish it was entitled to additional compensation. Scott Excavating appealed.2 Additional facts will be added as necessary. STANDARD OF REVIEW When reviewing a judgment following a bench trial, the trial court’s factual findings “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” CR3 52.01. “A factual finding is not clearly erroneous if it is supported by substantial evidence[,]” i.e., evidence that “has sufficient probative value to induce conviction in the mind of a reasonable person.” Gosney v. Glenn, 163 S.W.3d 894, 898-99 (Ky. App. 2005) (citations omitted). “The trial court’s conclusions of law are reviewed de novo.” Hoskins v. Beatty, 343 S.W.3d 639, 641 (Ky. App. 2011) (citation omitted). This review likewise applies to the construction and interpretation of a contract, which are questions of law. Frear v. P.T.A. Indus., Inc., 103 S.W.3d 99, 105 (Ky. 2003) (citations omitted). ANALYSIS On appeal, Scott Excavating argues the trial court erred in finding: (A) Menards did not breach the 2017 Contract by declining to pay for rock work; 2 Scott Excavating moved to alter, amend, or vacate the 2025 Judgment. The trial court amended the judgment to remove supplier payments, but left the remainder intact. 3 Kentucky Rule of Civil Procedure. -5- (B) Scott Excavating did breach the contract by failing to maintain insurance; (C) Scott Excavating did breach the contract through deficient and/or incomplete work; and (D) Scott Excavating was not entitled to retainage. Conversely, Menards argues the trial court’s factual findings were not clearly erroneous, and it correctly applied the law of the Commonwealth to those facts. We agree. A. The trial court did not err in finding Menards did not breach the 2017 Contract by declining to pay for rock work. The trial court found ambiguity in the contract. “The construction and interpretation of a contract, including questions regarding ambiguity, are questions of law to be decided by the court.” First Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 829, 835 (Ky. App. 2000) (citation omitted). “The cardinal rule of contract interpretation is that all words and phrases in the contract are to be given their ordinary meanings.” Fay E. Sams Money Purchase Pension Plan v. Jansen, 3 S.W.3d 753, 757 (Ky. App. 1999) (citation omitted). Contracts must be construed as a whole, “giving effect to all parts and every word in it if possible.” City of Louisa v. Newland, 705 S.W.2d 916, 919 (Ky. 1986). Pertinently, in the 2017 Contract, Article 1 (“The Authorized Work”) includes a handwritten clause stating: “(1) Rock clause can be done @ $160.00 per cy” (cubic yard, “Rock Clause”). Article 2 (“Changes in the Authorized Work”) states that Scott Excavating shall not perform any extra or additional work -6- or services outside the original scope of contract without prior approval via a signed change order. Any additional work performed without this approval “is done at [Scott Excavating’s] sole cost, expense, and risk.” Throughout the course of the project, Scott Excavating submitted seven change orders for rock work: change orders 3, 4, 9, 10, 14, 15, and 16. Menards approved and paid change orders 3, 4, 9, and 10. Menards approved but did not pay change order 14 because it believed the work was not done in conformity with the contract and was not completed.4 Menards did not sign, approve, or pay change orders 15 or 16 because they lacked supporting documentation and did not conform with the contract. On appeal, Scott Excavating argues the trial court erred in concluding the Rock Clause was ambiguous and in finding the parties’ course of conduct established rock work needed to be submitted via a change order. Scott Excavating asserts the Rock Clause is not ambiguous as it was written within the Article 1, the “Authorized Work” article, and explicitly stated a unit price. Essentially, Scott Excavating argues the original contract (including its handwritten additions) is clear: rock work is within the authorized work; change orders are not required; but the cost of rock work is additional to the original 4 This change order will be encapsulated within Section “C” discussing deficient work. -7- contract value. However, that interpretation is not apparent from the verbiage of the contract. “Where a contract is ambiguous or silent on a vital matter, a court may consider parol and extrinsic evidence involving the circumstances surrounding execution of the contract, the subject matter of the contract, the objects to be accomplished, and the conduct of the parties.” Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. App. 2002) (citations omitted) (emphasis added). “A contract is ambiguous if a reasonable person would find it susceptible to different or inconsistent interpretations.” Id. (citations omitted). Like the trial court, we find the Rock Clause to be ambiguous as it is silent on pertinent information and susceptible to varying interpretations. The handwritten clause (and its opened-ended unit price method) does not state if the cost of the rock work was additional to the original $450,000 contracted price or included within that amount. Also, the Rock Clause does not indicate if it is subject to Article 2 and the change order process, or if it is outside those parameters. As such, we agree extrinsic evidence is necessary to determine the intention of the parties. See id. “[O]nce a court determines that a contract is ambiguous, areas of dispute concerning the extrinsic evidence are factual issues and construction of the contract become subject to resolution by the fact-finder.” Id. (citations omitted). Here, the trial court, as the fact-finder, considered the parties’ general course of -8- conduct and determined that rock work was “additional,” requiring pre-approved change orders in accordance with Article 2. The 2025 Judgment stated: Despite Scott Excavating’s belief that change orders were not necessary for this type of work, it nonetheless conformed by preparing, executing, and submitting change orders for rock work. The evidence showed that rock work change orders 3, 4, 9, and 10 were submitted, approved, and paid for by Menards. Additionally, rock work change orders 14, 15, and 16 were submitted, and while change order 14 was approved, none of the three were ultimately paid. The Court finds that the parties’ course of conduct generally reflects that rock work was to be submitted for approval and payment by change order. On appeal, Scott Excavating does not establish that these factual findings are clearly erroneous. Scott Excavating directs us to deposition testimony of a construction manager for Menards – who did not testify at trial, but his deposition was admitted – stating his understanding that pre-approval was not required for rock work. However, Manager Carlson – who testified at trial, negotiated the terms of the contract, and decided whether change orders would be approved and paid – stated his belief that rock work was additional work subject to the change order process. Scott Excavating argues Menards waived the contractual requirement for change order pre-approval by not requiring strict adherence to that contractual requirement early in the project. Scott Excavating asserts the record “establishes that Menard[s] paid the first three invoices for rock excavation without preapproval -9- or supporting documentation.” To support this assertion, Scott Excavating cites generally to five minutes of Manager Carlson’s testimony during cross- examination by its legal counsel. It is unclear how that testimony supports Scott Excavating’s assertions. The cited testimony does not indicate that the trial court’s factual findings are clearly erroneous. In those five minutes, legal counsel for Scott Excavating directs Manager Carlson to various “invoices” for rock work and asked whether he pre-approved those invoices. (It is unclear how these invoices correlate to the numbered change orders.) Manager Carlson answered, “I don’t know if we pre-approved it or not.” Then, counsel asked him to read an email from a Menards executive that instructed Scott Excavating to submit change orders in accordance with the contract if it wanted to get paid for the invoices. Then, asking again if the discussed “change orders” were pre-approved, Manager Carlson answered, “I don’t know if I have the information to answer that question.” Again, counsel asked if the rock work was pre-approved, and Manager Carlson answered, “I don’t know if we did or not.” Counsel asked if he believed Scott Thomas was pre-billing Menards for rock work, to which Manager Carlson answered, “I don’t know.” That referenced testimony does not indicate Menards waived Article 2 and its change order requirements. -10- Next, Scott Excavating appears to conflate and commingle breach of contract and bad faith arguments. Scott Excavating argues, “Menard[s] later unilaterally altered its payment requirements, demanding formal change orders and third-party measurements, yet allowed Scott [Excavating] to continue working through March 2018 while [Manager Carlson] testified that Menard[s] internally decided in January 2018 to cease all further payments and intentionally withheld that decision from Scott [Excavating].” To support this assertion, Scott Excavating cites to 26 seconds of Manager Carlson’s testimony wherein he stated that Menards made the decision to stop all payments to Scott Excavating in January 2018. However, he then testified that he was unsure when or if Scott Excavating was notified of that decision. While not discussed in detail, it appears that sometime in 2017, Menards began requesting supporting documentation, third-party verification “measurements,” with the submitted change orders. The implication from trial testimony was that Menards had concerns about the volume of rock work billed by Scott Excavating and requested additional information to support their billing requests. Scott Excavating argues this request for additional documentation represented an improper unilateral contract alteration as third-party verification was not required by the contract. However, this argument was not fully explained or supported. It is unclear when Menards began requiring the supporting -11- documentation, whether such a request fell within the standard course of practice, if Scott Excavating opposed such a request, or whether the contract allowed for such a request. The argument was not effectively presented below, ruled upon by the trial court, nor sufficiently argued on appeal. Additionally, Scott Excavating uses these 26 seconds of Manager Carlson’s testimony to imply bad faith, i.e., to argue Menards allowed it to continue work on the jobsite through March/April 2018 all while knowing Scott Excavating would not receive payments for that work. Yet, those few statements alone do not sufficiently prove bad faith by Menards in light of other conflicting testimony. For instance, Manager Carlson testified (just after that 26 seconds) that he was unaware Scott Excavating was still working on the jobsite in 2018. Also, Scott Thomas later testified that in late January 2018, Menards informed him that “due to the accident they weren’t gonna pay right now.” As such, Scott Excavating has not established Menards acted in bad faith. Next, Scott Excavating argues Menards “simply refused to acknowledge that the [R]ock [C]lause allowed payment beyond the base contract amount[,]” but the facts appear to contradict that statement. The original contract amount was $450,000, but by the time Menards stopped payments, it had paid Scott Excavating $867,469, and the sewer line was still not complete. Testimony indicated that at least some of that payment increase encompassed rock work -12- represented by change orders 3, 4, 9, and 10. Those change orders are not challenged on appeal and appear to indicate Menards’s acknowledgment that the Rock Clause allowed for payment beyond the base contract amount. Additionally, Scott Excavating asserts rock work is unpredictable, which is why it is best for all involved to pay on a per unit price.5 Yet, Menards has not challenged the unit price payment scheme or the unit price itself; it only requested approved change orders prior to the rock work. We understand Scott Excavating’s argument that it was impossible to know exact rock amounts prior to doing the actual excavation, but it did not support that argument. For instance, Scott Excavating did not present evidence at trial that smaller estimates were impossible, that Menards was requesting work beyond standard practices, nor that it contested the handwritten contractual term prior to litigation. 5 Citing Dravo Corp. v. Commonwealth, Dep’t of Highways, 564 S.W.2d 16 (Ky. App. 1977), Scott Excavating argued, “[w]hen the unit price is established in the contract and is within the scope of the original work then a change order is not necessary for payment.” However, we can find no such holding in Dravo. In Dravo, a bridge construction contract established a unit price for steel piles. Id. at 20. After the initial test piles were driven, it was determined that the original design of the bridge needed to be modified. Id. The redesign required deleting some piles and adding additional piles for reinforcement. Id. The contractor was paid the unit price for the piles established in the original contract despite the design change. Id. The Dravo Court determined that that contract allowed for the possibility of design changes and, therefore, the parties intentionally set the pile price at a per unit rate. Id. at 20-21. While the contractor in Dravo submitted five change orders, there is nothing in the opinion to indicate specifically what those change orders included. In fact, it appears all five change orders were approved and paid, and it is unclear if the contractor submitted and/or contested additional change orders. The arguments in Dravo mainly related to damages as a result of changes in the contract and original bridge design; the opinion does not state a broad rule that if a unit price is included in the original contract, then change orders are not required. As the contracts and issues are distinct, Dravo is distinguishable from the matter before us. -13- Hence, the handwritten Rock Clause is ambiguous. The parties behaved as if the rock work was additional to the original authorized work, thus requiring change orders. Change orders 15 and 16 were not signed or approved in accordance with Article 2. Scott Excavating did not establish that Menards waived, altered, or breached the contract, nor did it show that Menards acted in bad faith. As such, Scott Excavating did not establish it was entitled to damages for unpaid rock work. B. The trial court did not err in finding Scott Excavating breached the 2017 Contract by failing to maintain insurance. The trial court determined Scott Excavating “was in breach of contract for failing to have and maintain the required workers’ compensation insurance.” The parties agree that the 2017 Contract required Scott Excavating to maintain workers’ compensation insurance for the duration of the project and to provide proof of such to Menards. They also agree that failure to do so was a material breach. The court noted: 4. The evidence reflects that Scott Excavating did not maintain workers’ compensation insurance as it had lapsed due to non-payment sometime before the accident on December 11, 2017. Scott Thomas testified that he was unaware of this development until after the death of Loren Richmond when it was eventually discovered that the cancellation resulted from an office manager defrauding and embezzling money from the company and allowing the insurance to expire. Menards claims it received a forged certificate of insurance. Scott Thomas acknowledged that a “fraudulent insurance certificate” was involved in this situation. . . . -14- 5. Menards claims that workers’ compensation insurance was not effective at the time the parties entered into the contract, and therefore Scott Excavating was in breach of the contract from the outset. Scott Thomas testified that his company performed multiple jobs for Menards before the work that is the subject of the contract involved herein and that the storm and sanitary sewer project was the final stage of the work. He stated that he knew for a fact the insurance was valid at the beginning of the parties’ relationship. . . . However, he could not testify with certainty that the workers’ compensation insurance was effective at the time this specific contract was signed and entered. When asked whether the workers’ compensation insurance was effective when he started the job and signed the contract, Scott Thomas testified “I want to say and believe, yes, but I know it was in effect because we performed multiple jobs and we progressed into the storm and sanitary sewer contract so I don’t know exactly, and to my knowledge, and I’m sure there’s paperwork on it, where it lapsed.” Ultimately, the trial court concluded Scott Excavating had no workers’ compensation insurance at the time the parties entered into the contract in March 2017, but under these circumstances, whether Scott Excavating had insurance at the initiation of the contract is irrelevant. As Scott Excavating did not prove Menards breached the contract (by non-payment for rock work or otherwise), who breached “first” is not in issue.6 Scott Thomas admitted during 6 In finding Scott Excavating’s insurance had lapsed at the time the contract was signed in March 2017, the court relied on a public record from the Kentucky Department of Workers’ Claims. On appeal, Scott Excavating argues this record was improperly admitted, but in light of Scott Thomas’s testimony and the lack of breach by Menards, this record is immaterial, and any alleged admission error is moot. -15- testimony that his company did not have workers’ compensation insurance at the time of the jobsite death in December 2017. The 2017 Contract required Scott Excavating to maintain that insurance for the duration of the work, and failure to do so equated to a material breach. Hence, Scott Thomas admitted to a breach of the 2017 Contract by not maintaining insurance. Scott Excavating argues Menards waived any insurance-related breach by allowing Scott Excavating to perform work after learning of the lapse, but we do not agree.7 Scott Thomas admitted that a forged insurance certificate was presented to Menards near the initiation of the project. He was not aware when exactly the insurance lapsed, but admitted his company did not have proper insurance in December 2017. Scott Thomas testified that he was informed by Menards in January 2018 that it would cease making payments “due to the accident.” Menards did just that. Based on that testimony, Scott Excavating did not establish Menards waived any breach. Again, Scott Excavating did not establish that the trial court’s factual findings were clearly erroneous, and we find no reversible error in the trial court’s finding that Scott Excavating breached the contract by not maintaining proper insurance. 7 The parties do not reference it, but Article 12(f) states that in the event Menards fails to receive and/or demand proof of insurance, such does not constitute waiver of the insurance requirement. -16- C. The trial court did not err in finding Scott Excavating breached the 2017 Contract through deficient and/or incomplete work. “Kentucky case law adheres to the ‘fundamental principle in the law of contracts that before one may obtain the benefits the contract confers upon him, he himself must perform the obligation which is imposed upon him.’” Hall v. Rowe, 439 S.W.3d 183, 186 (Ky. App. 2014) (quoting W. Ky. Coal Co. v. Nourse, 320 S.W.2d 311, 314 (Ky. 1959)). Thus, before Scott Excavating could recover alleged monies due, it needed to perform its contractual obligations. The trial court determined Scott Excavating did not perform its contractual obligations as its performance was deficient and incomplete. Scott Excavating argued that while testimony established the Flynn Brothers replaced the 96 feet of storm pipe installed by Scott Excavating, there was no definitive proof that Scott Excavating’s work was deficient. Instead, it argues the need for remediation was likely due to Menards’s actions of limiting Scott Excavating’s work (by not approving change orders) and leaving the pipe exposed for nearly two years. However, the trial court did not agree and stated as much in its 2025 Judgment: 8. Testimony was offered during the trial about various problems with the pipe such as water filling the trench around the pipe, the pipe having a gap in it, the pipe retaining water and not draining properly, and the pipe “floating” out of position caused by water underneath the pipe. These conditions were photographed primarily by [Remediator Coffman] in 2020 before the Flynn Brothers began work . . . . -17- 9. Other claims were made by Menards such as the pipe being in the wrong location and at the improper elevation, as well as the absence of a concrete headwall, backfill, and leaving the pipe exposed. [Remediator Coffman] stated there were specific problems with the location of the pipe relative to the plans. . . . [Manager Carlson] admitted that additional rock had to be excavated beyond the rock breaking work previously performed by Scott Excavating to reinstall the pipe at the proper elevation and location. . . . A photo taken by [Remediator Coffman] reveals a new 96[’] pipe installed by Flynn Brothers not lining up with the previously installed pipe. 10. The hiring of an additional contractor to perform remediation work, which included taking out the entire 96[’] pipe and reinstalling it (but reusing some of the original pipe), indicates to the Court that greater problems existed regarding the pipe installation than just the type of problems depicted in the photographs referenced above. The Court finds Menards would not have hired another contractor to remove and replace the pipe unless significant, material issues existed with the original installation. The Court is persuaded that deficiencies existed relating to Scott Excavating’s installation of the pipe which necessitated the hiring of Flynn Brothers to correct and complete the job. 11. The additional cost to Menards for remediation was $481,196.03. [Remediator Coffman] testified that this figure represented the total cost for the repair and installation of the 96[’] storm sewer pipe. Again, it is the trial court who is in the best position to judge the credibility of the witnesses and to discern the facts from conflicting testimony. CR 52.01. Scott Thomas admitted the sewer line installation was not completed, but stated “we went as far as we could go.” Scott Thomas stated cut-and-fill work -18- had to be completed before it could proceed further. However, Menards asserted that the cut-and-fill work was Scott Excavating’s responsibility. Menards claimed that constructing and installing a storm sewer pipe as part of a sewer system requires covering the pipe and not leaving it exposed as it was in this case. Further, the evidence at trial conflicted as to whether the work Scott Excavating did perform aligned with the contractual parameters. As the trial court stated, Scott Excavating did not present expert testimony regarding standard practices, the condition of the jobsite at Scott Excavating’s exit, nor the quality of Scott Excavating’s work on the sewer line. Scott Excavating did not present expert witnesses to rebut testimony presented by Menards relating to issues with Scott Excavating’s work, which included gaps, drainage issues, and positioning (location and elevation). It is undisputed that the Flynn Brothers replaced sections of the pipe that Scott Excavating originally installed and that Scott Excavating left the pipe exposed when it left the jobsite. The trial court explicitly concluded Scott Excavating materially breached the 2017 Contract for “performing deficient work and for not completing the required work under the contract for the storm sewer pipe installation.” Again, Scott Excavating did not establish that the trial court’s factual findings were clearly erroneous, and we find no reversible error in the trial court’s finding that Scott Excavating breached the contract due to deficient work. -19- D. We find no reversible error in the trial court’s determination of damages. In the 2017 Contract, Article 9 allows Menards to withhold payment for “defective work not remedied” and/or for “[u]nsatisfactory prosecution of the Authorized Work[,]” among other reasons. Article 11 states, “In the case of faulty or defective work, [Menards] shall have the option, in addition to any other remedy it may have, to accept the faulty or non-conforming work and take an appropriate reduction in the Contract Sum.” Article 13 allows Menards to terminate the contract if Scott Excavating is “guilty of a substantial violation of a provision” of the 2017 Contract. On appeal, Scott Excavating argues the trial court abused its discretion in awarding remediation damages totaling the full amount paid to the Flynn Brothers. It asserts Menards did not sufficiently establish that it improperly installed the 96’ sewer line and/or that the almost two-year jobsite abandonment did not substantially damage its work on the project. However, Scott Excavating misunderstands its burden on appeal. The trial court referenced testimony that Scott Excavating installed the 96’ sewer pipe at the wrong elevation and location. The trial court specifically held Scott Excavating breached the contract through deficient and incomplete work, and Menards had to hire the Flynn Brothers to correct the work. The court stated the Flynn Brothers had to remove the entire 96’ pipe and reinstall it. The -20- cost for that remediation work totaled $481,196. The court stated, “Menards would not have hired another contractor to remove and replace the pipe unless significant, material issues existed with the original installation. The Court is persuaded that deficiencies existed relating to Scott Excavating’s installation of the pipe which necessitated the hiring of Flynn Brothers to correct and complete the job.” As such, the court awarded Menards the entire remediation cost. This finding was supported by substantial evidence, and on appeal, Scott Excavating does not establish that these factual findings were clearly erroneous nor that the court somehow abused its discretion in awarding remediation damages. Similarly, Scott Excavating argues the trial court erred by failing to credit it with retainage held by Menards. This oversight, Scott Excavating argues, resulted in an impermissible double recovery for Menards. At trial, Controller Johnson described retainage as an industry standard practice of retaining 10% of a payment until completion of the project. According to Controller Johnson, this money was retained in the event unforeseen circumstances would arise and to allow the contractor to have “some skin in the game.” However, it was Controller Johnson’s professional opinion that Menards was not holding any retainage from Scott Excavating. Again, “judging the credibility of witnesses and weighing evidence are tasks within the exclusive -21- province of the trial court.” Vinson v. Sorrell, 136 S.W.3d 465, 470 (Ky. 2004) (emphasis added) (quoting Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003)). Scott Thomas testified Menards withheld retainage, but the trial court held that beyond that testimony, there was no additional evidence offered on this subject to verify this amount or to refute Menards’[s] position that there was no retainage amount available to be paid.” The court also noted that “[Controller Johnson] testified that the [2017 Contract] requires the contractor to keep and produce a specific form for retainage known as an AIA G703 form. It does not appear that the form was ever submitted to Menards or introduced at trial.” Critically, Scott Excavating failed to establish Menards withheld retainage, and it is unclear why Scott Excavating believes it would be entitled to retainage on a contract it breached. Thus, Scott Excavating fails to show how the trial court erred in addressing retainage or improperly relied upon clearly erroneous factual findings. CONCLUSION Accordingly, we AFFIRM the 2025 judgment of the Madison Circuit Court determining (a) Menards was entitled to $481,196 in remediation damages; and (b) Scott Excavating was not entitled to additional compensation. ALL CONCUR. -22- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Rodney G. Davis Anthony M. Pernice Richmond, Kentucky Lexington, Kentucky -23-