L&W Supply Corporation v. Greenway Enterprises, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2370
L&W SUPPLY CORPORATION, trading as Building Specialties,
United States of America for the use and benefit of,
Plaintiff - Appellee,
v.
GREENWAY ENTERPRISES, INC.; THE GUARANTEE COMPANY OF NORTH
AMERICA USA,
Defendants – Appellants,
and
LCJ AND ASSOCIATES LLC; ELIZABETH MUTTER, f/k/a Elizabeth
Hubbard,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:12-cv-00333-TSE-TCB)
Argued: September 17, 2013 Decided: October 29, 2013
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Palmer Hoovestal, HOOVESTAL LAW FIRM, PLLC, Helena,
Montana, for Appellants. James Charles Judkins, COWLES,
RINALDI, JUDKINS & KORJUS, LTD., Fairfax, Virginia, for
Appellee. ON BRIEF: Ralph D. Rinaldi, COWLES, RINALDI, JUDKINS
& KORJUS, LTD., Fairfax, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
The Miller Act, 40 U.S.C. § 3131 et seq., requires that a
prime contractor performing a construction project for the
federal government costing in excess of $100,000 post a payment
bond to protect those who have a direct contractual relationship
with a contractor or subcontractor. See J. W. Bateson Co., Inc.
v. United States ex rel. Bd. of Trustees of Nat. Automatic
Sprinkler Indus. Pension Fund, 434 U.S. 586, 587 (1978).
Defendant-appellant Greenway Enterprises Inc. (“Greenway”)
entered into a contract with the federal government for an
amount exceeding $100,000 to provide labor and materials
necessary to improve a federal facility. Greenway posted the
necessary bond, with defendant-appellant Guarantee Company of
North America (“GCNA”) acting as surety.
Greenway then subcontracted with LCJ and Associates, LLC
(“LCJ”), a firm run by Charles and Elizabeth Mutter, to perform
some of the work on the project. The Mutters had previously
operated their business through a sole proprietorship known as
LC Property Improvements (“LC Property”). They considered LCJ to
be the successor company to LC Property. LC Property had an open
credit account with plaintiff-appellee L&W Service Corporation
(“L&W”), which supplied the Mutters with materials for the
project. The Mutters paid for a portion of those materials, but
L&W sought recovery of the additional balance from Greenway and
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GNCA. The district court granted summary judgment on behalf of
L&W and awarded it $64,794.63.
The sole issue before this court is whether the district
court properly granted summary judgment on behalf of L&W, which
required a determination of the underlying question of whether
L&W was a proper Miller Act claimant. We review the district
court’s grant of summary judgment de novo. Shipbuilders Council
of Am. v. U.S. Coast Guard, 578 F.3d 234, 243 (4th Cir. 2009).
Appellants claim that LCJ and LC Properties were distinct
companies, and that L&W had a contract only with LC Properties,
which had no contractual relationship with Greenway. The
district court rejected this argument, determining that LCJ was
the successor company to LC Properties. Consequently, the
district court held that L&W had a contractual relationship with
LCJ, and was entitled to recovery under the Miller Act.
We affirm on the reasoning of the district court, as
articulated in its October 26, 2012 motions hearing. See Motions
Hearing, L&W Supply Corp. v. LCJ & Assoc., LLC, No. 1:12-cv-333
(E.D.V.A. Oct. 26, 2012). As the court below noted, the Mutters
treated LCJ as the successor to LC Property and acted as if
there was a contractual relationship between L&W and LCJ. LCJ
paid for materials from L&W with LCJ checks. LCJ, then, was
clearly the successor company of LC Property and maintained a
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contractual relationship with L&W. Therefore L&W is a proper
Miller Act claimant and is entitled to relief.
AFFIRMED
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