Barclay White Skanska, Inc. v. Battelle Memorial Institute

UNPUBLISHED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Affirmed in part; reversed and remanded in part by unpublished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Unpublished opinions are not binding precedent in this circuit.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.
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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
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