Barclay White Skanska, Inc. v. Battelle Memorial Institute ( 2008 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-1084
    BARCLAY WHITE SKANSKA, INCORPORATED,
    Plaintiff - Appellant,
    versus
    BATTELLE MEMORIAL INSTITUTE,
    Defendant - Appellee.
    Appeal from the United States District Court for the District of
    Maryland, at Baltimore.    Richard D. Bennett, District Judge.
    (1:04-cv-03864-RDB)
    Argued:   October 31, 2007                 Decided:   January 29, 2008
    Before TRAXLER and GREGORY, Circuit Judges, and Jerome B. FRIEDMAN,
    United States District Judge for the Eastern District of Virginia,
    sitting by designation.
    Affirmed in part; reversed and remanded in part by unpublished
    opinion. Judge Gregory wrote the opinion, in which Judge Traxler
    and Judge Friedman joined.
    ARGUED: Allen Tupper Brown, II, Gill, Massachusetts, for Appellant.
    Ava Elaine Lias-Booker, MCGUIREWOODS, L.L.P., Baltimore, Maryland;
    William Harrison Baxter, II, MCGUIREWOODS, L.L.P., Richmond,
    Virginia, for Appellee.    ON BRIEF: Andrew Jay Graham, KRAMON &
    GRAHAM, Baltimore, Maryland; Edward Seglias, COHEN, SEGLIAS,
    PALLAS, GREENHALL & FURMAN, P.C., Philadelphia, Pennsylvania, for
    Appellant.
    Unpublished opinions are not binding precedent in this circuit.
    2
    GREGORY, Circuit Judge:
    This case involves whether a plaintiff contractor presented
    genuine issues of material fact, sufficient to overcome the owner
    defendant’s motion for summary judgment.     We hold that it did.
    Accordingly, we reverse the district court’s grant of summary
    judgment with respect to $300,000 withheld for alleged incomplete
    work, for the failure to execute the approved change orders, and
    for general costs; however, we affirm the district court’s grant of
    summary judgment with respect to the disputed change orders, and
    remand for proceedings consistent with this opinion.
    I.
    Barclay White Skanska, Inc. (“Barclay White”), and Battelle
    Memorial Institute (“Battelle”) negotiated a construction contract,
    which provided that Battelle would pay Barclay White a contractor’s
    fee and the cost of work to manage the construction of a technology
    center. The contract included a “Guaranteed Maximum Price” (“GMP”)
    of $13,350,000.1   Battelle, however, could request an increase in
    the scope of the work, which would increase Barclay White’s costs,
    1
    The GMP represented the maximum Barclay White could be paid
    for all costs and fees. It was calculated as follows:
    38 Subcontractor Bid Packages:              $11,719,015
    Contingency:                                    450,000
    General Conditions:                             864,735
    Contractor’s Fee:                               316,250
    GMP (Total):                                $13,350,000
    3
    and in turn raise the GMP.     This process was done through change
    orders:   Barclay White would submit a request for a change order,2
    Battelle would approve or deny the request, and the GMP would be
    adjusted accordingly.
    During construction, Barclay White submitted several change
    order requests with regard to the additional work and its costs,
    which Battelle approved.3     However, Battelle did not execute the
    approved change orders and the GMP never increased.4
    In Spring 2003, Barclay White submitted its last payment
    application, valuing the contract at $13,426,444.72.5         Conversely,
    according   to   Battelle,   the   company   owed   Barclay   White   only
    $13,224,405.6    On May 10, 2004, Battelle responded to Barclay
    2
    First, Barclay White would submit a “Potential Change Order
    Notification” (“PCO”) describing the new work and estimating the
    cost.   After the cost had been determined, Barclay White would
    submit a “Change Order Request” (“COR”) for approval by Battelle.
    3
    Barclay White alleges that Battelle’s own records indicate it
    approved over a million dollars worth of change order requests.
    (Appellant’s Br. 8, J.A. 1146.)
    4
    Battelle paid the change orders as they were submitted.
    Payment is not at issue in this case.
    5
    Barclay White’s final payment application calculated:
    Total Reimbursable Costs Plus Fee:   $13,426,444.72
    Total Retainage:                        -170,230.26
    Amount Already Paid by Battelle:     -12,102,951.42
    Requested Payment:                   $ 1,153,263.04
    (J.A. 1139.) According to Barclay White, the final payment would
    have included a “[b]alance to finish including retainage” of
    $93,785.54.
    6
    Conversely, Battelle’s calculated:
    Total Reimbursable Costs Plus Fee:        $13,524,405
    4
    White’s   last   payment   application   with   a   letter   and   final
    installment payment of $387,315, indicating that after being paid
    that amount, Barclay White would have been paid in full for its
    work under the contract.   (J.A. 80.)    Battelle arrived at the final
    amount by subtracting the installment payments made to Barclay
    White in the course of construction, as well as an additional
    $300,000 for incomplete work, from the total contract amount.       See
    supra note 6.
    On June 4, 2004, Barclay White replied with a letter stating
    it did not accept the check as final payment for the project.
    Barclay White then filed its original complaint in Maryland court,
    alleging that Battelle had not paid Barclay White for the costs
    associated with two particular change orders and that Battelle had
    withheld the balance of the contract by failing to pay Barclay
    White the entire GMP. The original complaint contained a breach of
    contract claim for nonpayment of the change orders7 for $624,870,
    Total Withheld:                          -300,000
    Amount Already Paid by Battelle:      -12,837,090
    Payment Owed:                         $   387,315
    (J.A. 1139.) Thus, there is an approximate $734,139.58 difference
    between what Battelle calculated it had paid and what Barclay White
    calculated Battelle had paid.         Additionally, there is an
    approximate $97,960.28 difference between the contract amount
    calculated by the two parties.
    7
    The first change order refers to Barclay White’s request for
    a payment of $320,787 for six PCOs, which became six CORs.
    The second change order refers to Barclay White’s request for
    a payment of $304,083 for 48 PCOs, which translated into 46 CORs.
    Battelle alleges it paid in full with regard to this amount, with
    the exception of one voided and two disputed PCOs. Battelle paid
    5
    a breach of contract claim for $125,595 (the balance between the
    GMP and the amount paid), an unjust enrichment claim, a quantum
    meruit claim, and a claim for the violation of the Maryland Prompt
    Payment Act.    Battelle answered, filed a counterclaim, and removed
    to federal court.8
    Following discovery, both parties moved for summary judgment.
    The district court rejected Barclay White’s motion and granted
    Battelle’s motion.       Barclay White moved for reconsideration of its
    breach of contract claim, which the court denied.                 Battelle and
    Barclay White then stipulated to dismiss Battelle’s counterclaim
    without prejudice.       Consequently, the district court dismissed the
    counterclaim.     On the same day, Barclay appealed to this Court,
    challenging    the   district    court’s   order   and   grant     of   summary
    judgment,   but   only    with   respect   to   Count    I   of   the   Amended
    Complaint, the breach of contract claim.                Thus, the grant of
    $291,011.
    Additionally, in its Amended Complaint, Barclay White argued
    that it was entitled to payment of a third change order in the
    amount of $222,006 for what appears to be 37 PCOs converted to 34
    CORs.
    8
    On May 15, 2005, Barclay White moved to amend its complaint,
    filing an Amended Complaint with its motion. Battelle argues in
    its brief that the amendment was untimely, as it was filed outside
    of the time allotted for amending the complaint by the district
    court’s scheduling order. Battelle opposed the amendment. The
    district court granted the motion, and the Amended Complaint was
    filed. However, because the district court ultimately accepted the
    Amended Complaint, amending the complaint is not an issue in this
    appeal.
    6
    summary judgment on the breach of contract allegation is Barclay
    White’s sole claim before us on appeal.9
    II.
    We review a grant of summary judgment de novo, “employing the
    same legal standards applied by the district court.”    Elliott v.
    Sara Lee Corp., 
    190 F.3d 601
    , 605 (4th Cir. 1999) (citing Brogan v.
    Holland, 
    105 F.3d 158
    , 161 (4th Cir. 1997)).      In evaluating a
    motion for summary judgment, this Court reviews the evidence in the
    light most favorable to the nonmoving party, in this case Barclay
    White.    See Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 255
    (1986).
    Summary judgment is proper when there is no genuine issue of
    material fact to warrant a trial.    FED. R. CIV. P. 56(c); Celotex
    Corp. v. Catrett, 
    477 U.S. 317
    , 322 (1986).   Battelle argues that
    it is entitled to summary judgment because it has already paid
    Barclay White all the amounts owed under the contract.     Barclay
    White counters that the district court erred by limiting its breach
    of contract claim and that it raised genuine issues of material
    fact.    We agree.
    9
    The breach of contract claim includes damages Barclay White
    alleges as resulting from delay.
    7
    A. Scope of Claim
    The district court began its analysis by limiting the scope of
    Barclay White’s breach of contract claim to three change orders.10
    The court then found that Battelle “correctly notes that this
    disputed evidence clearly shows that [Barclay White] has been paid
    the appropriate amounts owed under Change Orders one, two, and
    three,”    and   that   Barclay    White   “has    not   presented   evidence
    indicated [sic] that these amounts were not included as part of the
    $13,224,405 paid by Battelle to Barclay.”                (J.A. 2388.)      As a
    result, the court concluded that Barclay White did not present
    sufficient probative evidence to overcome summary judgment on its
    breach of contract claim.
    Barclay White argues that the district court incorrectly
    narrowed   the   breach   of    contract   claim   to    an   allegation    that
    Battelle did not pay for the extra work indicated on the three
    changes orders.    Rather Barclay White maintains that it pled a far
    more general breach of contract claim, growing out of Battelle’s
    failure to pay all amounts due under the contract.              We agree.
    Notice pleading rests on the principle that the defendant
    should have “fair notice of what [a] plaintiff’s claim is and the
    10
    The district court stated that “[a]lthough the precise
    contours of Plaintiff’s breach of contract claim are virtually
    impossible to identify, this Court treats Count I as a claim based
    on Battelle’s alleged failure to pay $995,164 in connection with
    the CORs listed in Change Orders one, two, and three.”       (J.A.
    2385.)
    8
    grounds upon which it rests.”           Conley v. Gibson, 
    355 U.S. 41
    , 47
    (1957).    Rule 8 of the Federal Rules of Civil Procedure provides
    that “[p]leadings must be construed so as to do justice.”               FED. R.
    CIV. P. 8(d).    Rule 8 “requires only ‘a short and plain statement
    of the claim showing that the pleader is entitled to relief,’ in
    order to ‘give the defendant fair notice of what the . . . claim is
    and the grounds upon which it rests.’”             Bell Atl. Corp. Twombly,
    
    127 S. Ct. 1955
    , 1964 (2007) (quoting Conley v. Gibson, 
    355 U.S. 41
    , 47 (1957) (omission in original)).
    The breach of contract claim in the Amended Complaint stated
    that   “[d]uring   the   course    of    the   Project,    Barclay   White    was
    directed by Battelle and/or its representatives to perform Extra
    Work.”    (J.A. 430, ¶ 55.)        However, while Barclay discussed the
    “Extra Work” it performed in its breach of contract claim, it also
    included claims that “[p]ursuant to its Contract with Barclay
    White, Battelle agreed to pay Barclay White for the work, services
    and materials Barclay White supplied at the Project,” that “Barclay
    White performed all Contract work and Extra Work in a timely,
    professional and workmanlike manner,” and that “[de]spite Barclay
    White [sic] fulfulling all of its obligations under the Contract
    and performing all Extra Work as requested by Bartelle in a timely,
    professional and workmanlike manner, Battelle has failed and/or
    refused    to   remit    payment    to       Barclay   White   in    excess    of
    1,078,465.00.”     (J.A. 431, ¶¶ 57, 59, 60.)             Thus, under a broad
    9
    pleading rule, Battelle was on notice that the breach of contract
    claim implicated both “all Contract work and Extra Work.”                 The
    district court was thereby incorrect in restricting Barclay White’s
    claim to just three change orders.         We hold that Barclay White pled
    a   breach   of   contract   claim,   encompassing   all   work   under   the
    contract and all extra work.      We now turn to whether Barclay White
    presented genuine issues of material fact sufficient to defeat
    Battelle’s summary judgment motion.
    B. Genuine Issues of Material Fact
    In its Reply Brief, Barclay White clearly claims damages for
    money withheld for incomplete work and for the failure to pay
    disputed change orders, as well as general and additional costs.
    Battelle argues that despite Barclay White’s knowledge of the
    $300,000 withheld, the $204,000 in disputed change orders, and the
    $384,000 in cost overruns, it failed to include those amounts in
    its eighty-nine paragraph Amended Complaint and cannot assert them
    before this Court.
    1. Money Withheld
    Battelle created a punch list of deficient work, sought an
    estimate for the completion of that work, and subtracted that
    amount from its payment to Barclay White.11        Barclay White contends
    that Battelle breached the contract by withholding $300,000 for
    11
    Barclay White at argument asserted only that it performed
    most, and not all, of the punch work.
    10
    incomplete work.     Battelle responds that Barclay White did not
    sufficiently plead this aspect of its breach of contract claim, and
    thus, this Court cannot hear it.        We disagree.    Barclay White’s
    claim for all costs under the contract includes the $300,000
    Battelle withheld.    Moreover, the amount withheld constitutes a
    genuine issue of material fact appropriate for a factfinder.
    With its May 10, 2004 payment closeout letter and check for
    $387,315, Battelle included a May 4, 2004, letter from Himes
    Associates, Ltd. (“Himes”), the owner representation firm employed
    by Battelle.   In a section titled “Incomplete/Deficient Work,” the
    Himes letter explained:
    BWS [Barclay White Skanska] has never completed the
    interior or exterior punch lists that were issued during
    the course of the project. Battelle had the design team
    consolidate the punch lists into one document that
    addressed only the significant issues with the operation
    of the building.
    This punch list was priced by another contracting firm
    who determined that repairs to the building would cost
    $300,000.    This figure was used to establish the
    uncorrected/incomplete analysis of the project and
    contract. Certainly BWS has the option to complete this
    list but since it was issued in December 2003, no attempt
    to correct the work has been undertaken.
    (J.A. 1131.)   Thus, based on Barclay White’s failure to complete
    the punch list and an outside estimate of the cost of the work,
    Battelle withheld $300,000 for incomplete work.
    Battelle argues that in failing to include it in the Amended
    Complaint, Barclay White did not properly plead this issue, thereby
    barring   Barclay   White   from   recovering   the    withheld   amount.
    11
    Battelle is partially right:        nowhere in the Amended Complaint’s
    factual background or section on the breach of contract does
    Barclay   White   challenge   any   funds    withheld   for   a   failure   to
    complete work.     Yet before this Court, Barclay White claims that
    the $300,000 represents a failure to honor the contract and can be
    inferred to be included in parts of the Amended Complaint dealing
    with the breach.    We agree.
    As we held in the previous section, Barclay White alleged a
    claim for all costs owed under the contract. According to Maryland
    law, the existence of a binding contract requires “an offer by one
    party and an unconditional acceptance of that precise offer by the
    other.”   Lemlich v. Bd. of Trs., 
    385 A.2d 1185
    , 1189 (Md. 1978).
    In Taylor v. NationsBank, N.A., 
    776 A.2d 645
    , 651 (Md. 2001)
    (citations omitted), the Maryland Court of Appeals held that
    To prevail in an action for breach of contract, a
    plaintiff must prove that the defendant owed the
    plaintiff a contractual obligation and that the defendant
    breached that obligation. It is not necessary that the
    plaintiff prove damages resulting from the breach, for it
    is well settled that where a breach of contract occurs,
    one may recover nominal damages even though he has failed
    to prove actual damages.
    Intentionally withholding any costs that would otherwise be owed
    constitutes a potential breach.             Thus, because Barclay White
    included a general claim for all costs under the contract, it was
    not necessary for Barclay White to specifically plead the $300,000
    Battelle withheld to recover damages for that amount.
    12
    Although employees of Barclay White indicated that the company
    was aware of certain unfinished work (see J.A. 1231-34), for
    Battelle to withhold $300,000 when retainage had already been
    calculated, providing only a quote from “another contract firm” as
    support,12 raises a genuine issue of material fact.        In moving for
    summary judgment, Battelle attached several documents to buttress
    its position, including depositions, letters from the outside
    contractor, an appraisal report of the incomplete work, and Himes’
    accounting documents.     While this evidence supports Battelle’s
    argument that the alleged unfinished work would cost $300,000 to
    complete, it may not relieve Battelle of its contractual obligation
    to pay Barclay White.
    That said, a claim for $300,000 is somewhat disingenuous, as
    Barclay White in its own calculations allowed for a $170,230.26
    deduction   in   retainage,   as   calculated   in   its   final   payment
    application.     See supra note 5.       Thus, the claim may be more
    rightfully for $129,769.74, the difference between Barclay White’s
    own calculation of retainage and the amount actually withheld by
    Battelle.   Though we note this discrepancy, we leave this question
    to the trier of fact.
    12
    Peter Coyle of Barclay White testified at his deposition that
    he did not receive a detailed breakdown of the outside estimate
    until the parties attempted settlement negotiations. (J.A. 1240.)
    13
    2. Change Orders
    Barclay White presents two issues related to change orders:
    Battelle’s failure to execute the approved change orders and its
    failure to pay the disputed change orders. We address these issues
    in turn.
    In its Amended Complaint, Barclay White alleges that
    Pursuant to the Contract, Barclay White is entitled to
    written change orders and a corresponding increase in the
    Contract price for work it performed at the direction and
    request of Battelle and/or Himes that was in addition to,
    beyond or outside the scope of the original terms of the
    Contract (“Extra Work”).
    (J.A. 421, ¶ 6.) In moving for summary judgment, Battelle attached
    several pages of deposition testimony to its motion for summary
    judgment in which Barclay White’s expert declares that he could not
    contest Battelle’s expert’s testimony that the disputed change
    orders were paid.          With its motion opposing summary judgment,
    Barclay White filed several exhibits, including a letter presenting
    the   GMP,   copies   of    potential    change   orders,   affidavits,   and
    deposition testimony.       However, Barclay White included no evidence
    directly contradicting Battelle’s evidence that the change orders
    had, in fact, already been paid.13            Moreover, at oral argument
    13
    With respect to change orders one and two, it is undisputed
    by the evidence presented in the exhibits that those amounts were
    paid. There is, however, some confusion with regard to the third
    change order. Barclay White originally presented the third change
    order as comprised of 37 PCOs, but later one of Barclay White’s
    witnesses indicated that the third change order consisted of 63
    CORs. Battelle’s witness testified that the original 37 PCOs were
    paid.   Although Barclay White raised this issue in opposing
    14
    Barclay White clarified that the issue was not whether the change
    orders were paid, but rather whether they were executed, the result
    of which under the contract would have been an increase of the GMP.
    Both Barclay White and Battelle calculated that the total contract
    cost exceeded the $13,350,000 GMP.14             If the total contract cost
    exceeded the GMP, the payment but failure to execute the change
    orders would adversely affect Barclay White because the payments
    would        go   toward   the   GMP   without   the   GMP’s   being   increased
    accordingly, thereby cutting into the amount Barclay White could
    receive for costs and other expenses.            Thus, regardless of whether
    the change orders were paid, Barclay White may have a claim for the
    difference between the actual contract value, as determined by a
    jury, and the GMP because the paid change orders were never
    executed.15
    In addition to its claims related to the failure to execute
    the approved, paid change orders, Barclay White also argues that it
    Battelle’s motion for summary judgment, this inconsistency is not
    an issue at this point in the proceedings, as Barclay White
    concedes that the issue surrounding the approved change orders is
    not payment but execution.
    14
    Before the $300,000 deduction, Battelle valued the contract
    at $13,524,405. Barclay White valued it at $13,426,444.72. (J.A.
    1139.)
    15
    However, according to Barclay White’s calculations, if
    Battelle is entitled to the $170,230.26 of retainage, the total
    owed to Barclay White is $13,256,214.46, an amount under the GMP,
    potentially making the failure to execute the change orders moot,
    if Battelle is allowed to keep the retainage.
    15
    is entitled to $204,454 in disputed change orders.            The disputed
    change   orders     arose   from    eleven      potential    change   order
    notifications     that   Himes   found   were    not   billable   under   the
    contract. (J.A. 1137.) Battelle again counters that the issue was
    not properly pled, as Barclay White specifically alleges damages
    for three change orders in its Amended Complaint, but is silent
    with respect to the disputed change orders.            However, unlike the
    $300,000, which Battelle deducted from approved costs and fees,
    liberal notice pleading cannot save Barclay White’s claim for the
    disputed change orders.
    As we previously stated, notice pleading is designed to
    provide defendants with fair notice of the plaintiffs’ claims and
    the grounds upon which those claims rest.          Conley, 
    355 U.S. at 47
    .
    Thus, Barclay White’s complaint cannot be construed so liberally so
    as to deprive Battelle of notice.               Additionally, despite the
    liberal pleading rules outlined by the Supreme Court, plaintiffs
    may not raise new claims without amending their complaints after
    discovery has begun.     In Gilmour v. Gates, McDonald & Co., 
    382 F.3d 1312
    , 1315 (11th Cir. 2004) (citing Shanahan v. City of Chicago, 
    82 F.3d 776
    , 781 (7th Cir. 1996)), the Eleventh Circuit held that
    Efficiency and judicial economy require that the liberal
    pleading standards under Swierkiewicz and Rule 8(a) are
    inapplicable after discovery has commenced.       At the
    summary judgment stage, the proper procedure for
    plaintiffs to assert a new claim is to amend the
    complaint in accordance with Fed. R. Civ. P. 15(a). A
    plaintiff may not amend her complaint through argument in
    a brief opposing summary judgment.
    16
    Other circuits have taken similar positions.    See Tucker v. Union
    of Needletrades, Indus., & Textile Employees, 
    407 F.3d 784
    , 788
    (6th Cir. 2005); Shanahan, 
    82 F.3d at
    781 (citing Car Carriers,
    Inc. v. Ford Motor Co., 
    745 F.2d 1101
    , 1107 (7th Cir. 1984)) (“A
    plaintiff may not amend his complaint through arguments in his
    brief in opposition to a motion for summary judgment.”); Fisher v.
    Metro. Life Ins. Co., 
    895 F.2d 1073
    , 1078 (5th Cir. 1990) (“As the
    district court correctly noted, this claim was not raised in
    Fisher’s second amended complaint but, rather, was raised in his
    response to the defendants’ motions for summary judgment and, as
    such, was not properly before the court.”).16    Barclay White is,
    therefore, unable to raise new claims after discovery has commenced
    without further amending its complaint.
    In a preceding section, we held that Barclay White’s claim for
    all costs owed under the contract encompassed a claim for the money
    withheld by Battelle due to unfinished work.    With regard to that
    issue, Battelle ignored the terms of the contract and the retainage
    already built into the agreement, conducted an outside appraisal,
    and deducted monies from the contract amount that Barclay White
    otherwise would have been owed. In contrast, the $204,454 at issue
    16
    Additionally, district courts in this circuit have adopted
    Gilmour. See Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp.,
    
    455 F. Supp. 2d 399
    , 436 (D. Md. 2006); Miller v. Jack, 
    2007 U.S. Dist. LEXIS 50685
     at *12 (N.D. W.Va. July 12, 2007) (citations
    omitted) (“Significantly, a plaintiff may not amend his complaint
    through arguments in his brief in opposition to summary
    judgment.”).
    17
    here arises from disputed change orders, that is change orders that
    for one reason or another were not approved or did not conform (at
    least   from    Battelle’s    perspective)    to     the   conditions    of   the
    contract.      Put differently, unlike the withheld money, because of
    the disputed nature of these change orders, Battelle did not fail
    to pay Barclay White money to which it was otherwise clearly
    entitled.      Thus, the disputed change orders do not fall within the
    scope of the “all Contract work and Extra Work” pled in Barclay
    White’s Amended Complaint. In outlining the specific parameters of
    its Amended Complaint, Barclay White discusses “Extra Work” in
    terms   of   the   approved   change    orders,      and   Battelle   conducted
    meticulous discovery with respect to those change orders. However,
    Barclay White’s failure to include the disputed change orders in
    its Amended Complaint deprived Battelle of the opportunity to have
    discovery on this issue.
    Although in its Reply Brief Barclay White tries to reframe the
    disputed change orders as additional money unfairly withheld by
    Battelle, those orders were not approved. Thus, under the terms of
    the   contract,     Barclay   White    was   never    entitled   to     payment.
    Consequently, while the broad pleading rules can save the issue of
    the money withheld for incomplete work, it cannot similarly save
    the disputed change orders.            Because Barclay White’s Amended
    Complaint did not put Battelle on sufficient notice that, in
    addition to the three change orders enumerated in the complaint,
    18
    the disputed change orders were also at issue, we hold that it
    failed to plead this issue adequately and affirm the district
    court’s grant of summary judgment on this issue.
    3. General Costs
    Lastly, Barclay White argues that it is entitled to $384,383
    in General Costs beyond Battelle’s calculations.                Battelle argues
    that the costs were capped at $834,854.               As with both preceding
    issues, Battelle argues that Barclay White failed to include
    general costs in its Amended Complaint and, therefore, cannot
    recover.    Again, we disagree.
    A May 11, 2001, bid form clearly states that the general
    conditions were not to exceed $834,854, thereby expressly capping
    what Barclay White could recover for costs, but containing no GMP.
    (J.A.   535.)    The     governing    contract,       however,       includes   the
    $13,350,000 GMP, but does not include a cap on costs.                    Like the
    $300,000 withheld, the General Costs issue falls within the broad
    umbrella of Barclay White’s claim for “all Contract work.” Whether
    the cap articulated in the bid form, but not included on the face
    of   the   contract,    should   apply     is    a    matter    of    contractual
    interpretation suited for trial.
    C. Notice Requirement
    In    granting    Battelle’s    motion     for   summary    judgment,      the
    district court also found that Barclay White failed to comply with
    the notice provision of the contract. Citing the Maryland Court of
    19
    Special Appeals case J. Ronald Dashiell & Sons, Inc. v. County
    Commissioners of Caroline County, No. 677 (Md. Ct. Spec. App. Feb.
    22,   1999),    affirmed   in   part,      reversed   in     part   by   County
    Commissioners of Caroline County v. J. Ronald Dashiell & Sons,
    Inc., 
    747 A.2d 600
     (Md. 2000), the district court found that
    Barclay White’s written statement that it was considering filing a
    claim for delay inadequate notice under the contract. In Dashiell,
    the court granted summary judgment on a liquidated damages claim
    because   the   contractor   failed     to   comply   with    the   contract’s
    notification requirement.       Id. at *9.    In its brief to this court,
    Battelle asserts that in addition to any “delay damages,” Barclay
    White also waived, inter alia, claims for the $300,000 withheld,
    the disputed change orders, and the general conditions costs under
    Dashiell.      (Appellee’s Br. 37.)        We now address the contract’s
    notice requirement.
    Section 4.3 of the Contract governs notice.               That section
    reads:
    4.3 CLAIMS AND DISPUTES
    4.3.1 Definition.
    A Claim is a demand or assertion by one of the parties
    seeking,   as  a   matter   of  right,   adjustment   or
    interpretation of Contract terms, payment of money,
    extension of time or other relief with respect to the
    terms of the Contract. The term “Claim” also includes
    other disputes between the Owner and the Contractor
    arising out of or related to the Contract. Claims must
    be initiated by written notice. The responsibility to
    substantiate Claims shall rest with the party making the
    Claim.
    20
    4.3.2 Time Limit on Claims.
    Claims by either party must be initiated within 21 days
    after the occurrence of the event giving rise to such
    Claim or within 21 days after the claimant first
    recognizes the condition giving rise to the Claim,
    whichever is later. Claims must be initiated by written
    notice to the Architect and the other party.
    (J.A. 491, §§ 4.3.1, 4.3.2.)   As in the present case, in Dashiell,
    the contract required written notice of the claim within 21 days.
    However, the contractor submitted a letter on December 16, 1996,
    indicating the intent to recover unspecified delay damages for
    events occurring after June 20, 1996.    Dashiell, No. 677 at *9.
    The Dashiell court held that the notice was untimely.17        Id.
    Conversely, Barclay White provided Battelle with timely written
    notice.
    In early 2003, Barclay White sent its last payment application
    to Battelle, indicating Barclay White’s position that Battelle owed
    $13,426,444.72 for the entirety of the contract.     Barclay White
    received Battelle’s check and final payment letter on May 21, 2004.
    (J.A. 582.) Barclay White responded on June 4, 2004, fourteen days
    later, rejecting the check and indicating Barclay White was of the
    17
    The Dashiell court also noted in a footnote that “[i]n
    addition to being untimely, the December 16, 1996, ‘Notice of
    Claim’ did not provide ‘an estimate of cost and of probable effect
    of delay on progress of the work’ pursuant to the plain language of
    section 4.3.8.1.” Dashiell, No. 677 at *9, n. 2. Section 4.3.7.1
    of the Barclay White’s contract with Battelle contains a similar
    provision. However, that section deals only with delay damages,
    whereas the issues currently before this Court are money withheld
    for defective work, the disputed PCOs, and the general conditions
    costs. Section 4.3.7.1 does not, therefore, apply.
    21
    position that Battelle owed more money under the contract.           (J.A.
    584-87.)     As the final payment application and subsequent letter
    were sufficient to fulfill the written notice requirement, the
    district court was incorrect in finding Barclay White had waived
    its claim.
    IV.
    The district court erred in limiting Barclay White’s breach of
    contract claim.     Thus, we hold that Barclay White pled a breach of
    contract claim for all costs owed under the contract.             With the
    scope of the claim no longer so severely limited, we hold that
    Barclay    White   presented   genuine   issues   of   material   fact   in
    reference to the $300,000 withheld for alleged incomplete work, the
    failure to execute the approved change orders, and general costs.
    We, therefore, reverse the district court’s grant of summary
    judgment on these issues. However, because Barclay White failed to
    plead the disputed change orders adequately, we affirm the district
    court’s grant of summary judgment on this issue.         Thus, we remand
    this case for a trial on the merits pursuant to this opinion.
    AFFIRMED IN PART;
    REVERSED AND REMANDED IN PART
    22