United States District Court, D. Maryland
KLICOS PAINTING CO., INC.
SAFFO CONTRACTORS, INC.
Frederick Motz United States District Judge.
case involves alleged breaches of oral contracts and related
claims arising out of work performed on a project to repair
and paint various bridges on 1-95 and 1-395.
Defendant/Counterplaintiff Saffo Contractors, Inc.
("Saffo") has filed a motion for summary judgment
and Plaintiff/Counterdefendant Klicos Painting Co., Inc.
("Klicos") has filed a partial motion for summary
judgment. [ECF Nos. 76, 98]. The issues have been fully
briefed, [ECF Nos. 86, 88, 95, 102, 103], and no hearing is
necessary. See Local Rule 105.6 (D. Md. 2014). For
the reasons stated below, both motions will be granted in
part and denied in part.
29, 2013, the Maryland Transportation Authority
("MDTA") awarded Saffo a contract to perform
"Superstructure Repairs and Zone Painting of Various
Bridges on 1-95 and I-395 South of Fort McHenry Tunnel"
(Contract No. FT 2575-000-006) ("the Project"). In
November, 2013, Saffo's principal, Nick Saffo, met with
Klicos's principal, George Klicos, and other employees of
both companies for a lunch meeting at Nick's Seafood to
discuss the Project. George Klicos Depo. at 156-161. At that
meeting, according to George Klicos, the parties reached an
agreement to work on the Project together. Id.
George Klicos characterized the lunch meeting as
"general discussions" and "pretty basic, basic
conversations. I mean, nothing like, okay, this bridge,
we're going to do this, or this bridge we're going to
do this, or this bridge we're going to do this. It was
very general what we're going to do, how we're going
to do it and what the plan was." George Klicos Depo. at
158-59. As for the payment, George Klicos testified that as
the money came in,
It would be divvied out as anything over and above actual
costs at that time. We would split it up. We would divvy it
out. There was no set amount going into it. It's as every
- ultimately as every pay estimate came in, we were paid a
sum. There was no formula as to why we got paid this or why
we got paid that. There was never any formula going in as to
how we would get paid, when I - how much I would get paid,
exactly how much I would get paid.
Klicos Depo. at 165-66. In contrast, Nick Saffo testified
that at the November lunch meeting, the parties discussed a
lump sum subcontract agreement and made "no commitment
at that time." Nick Saffo Depo. at 45-46. Nick Saffo
testified that there was no discussion at that meeting about
sharing or distributing profits. Id. at 48.
months later, in March, 2014, Nick Saffo and George Klicos
participated in a telephone conversation with two other Saffo
employees. Ost Depo. at 110-20. During that call, according
to Saffo employee Michael Ost, the parties agreed that Klicos
would be a subcontractor to Saffo on the Project.
Id. at 110-13. Ost testified that the agreement was:
Saffo was going to control all of the accounting and cash
flow on the project, and there would be periodic
distributions of cash flow to keep the operating account
above negative. And based on [Klicos's] completion of all
cleaning and painting services on all of the structures on
the project, their incentive was going to be a 50/50 split on
the profit at the end of the project.
Id. at 113. According to Ost, "The only
requirement that was set in stone was completion - through
the completion of the project." Id. at 131.
Nick Saffo testified that in that phone call, they agreed,
"if [Klicos] would bring the job in through the
completion, and we all watched his cost and gave him a cash
flow advancement to keep him operating that we would share in
the total after completion." Nick Saffo Depo. at 67.
George Klicos has no recollection of that March, 2014
telephone call. George Klicos Depo. at 265-67.
about March 17, 2014, George Klicos signed a
"Contractor's Request for Approval of Subcontractor,
" which Saffo submitted to MDTA for approval to use
Klicos as a subcontractor on the Project. Def. Mot. Ex. 1, 2.
Klicos performed work on the Project from approximately March
through November of 2014. George Klicos Depo. at 147. Klicos
submitted periodic invoices to Saffo, and Saffo paid Klicos
upon receipt of the invoices. According to George Klicos, the
amounts of the invoices he sent were based on his review of
Saffo's expenses, and "[s]aid okay, this month
there's - give me $300, 000. That more than covers my
expenses. That more than leaves you with enough money. The
project is doing well. We're starting to divvy up the
profit. They never objected to sending me the money."
George Klicos Depo. at 289. When asked about his basis for
requesting a particular amount at a particular time, George
Klicos testified, "My basis is we had a deal You guys
said you're going to do this. Give me my money."
Klicos Depo. II at 504. He also said, "What prompts me
to ask for my profit? Well, given the fact that you've
been giving it to me. That's what prompts me."
Klicos Depo II at 507. Saffo's position is that it was
paying ongoing cash advances to Klicos to allow Klicos to
undertake project-related expenses while maintaining positive
cash flow. Nick Saffo Depo. at 80-81; Ost Depo. at 113; Tia
Saffo Depo. at 224.
December, 2014, the painting work on the Project was about
50% -65% complete. Klicos Depo. II at 502-03. In December,
Klicos stopped painting work on the project, citing winter
weather conditions that were unfavorable for painting. George
Klicos Depo. at 99-100. In February or March, 2015, some
Klicos employees returned to the job site. Antonios
Hatzileris Depo. at 81, Kominos Hatzileris Depo. at 79-80.
According to Klicos, those employees were preparing the
equipment to resume work, Id., but Saffo asserts,
without citation, that the employees were there solely to
remove equipment from the jobsite. [ECF No. 102 at 13]. In
February, 2015, Klicos submitted an additional invoice for
$200, 000 to Saffo, although Klicos employees had not
performed significant work on the project for almost two
months. George Klicos Depo. at 314. According to Tia Saffo,
Saffo's business manager, during a telephone
conversation, George Klicos promised to return his workers
immediately to complete the job if the $200, 000 invoice were
paid, and Saffo agreed to pay the invoice. Tia Saffo Depo. at
187-88. George Klicos does not recall that conversation with
Tia Saffo. George Klicos Depo. at 316-17. In March, 2015,
Klicos sent an additional invoice for $345, 000, although
Klicos had performed no additional painting work since
December. Saffo declined to pay that invoice, leading Klicos
to withdraw from the project. George Klicos Depo. II at
560-64; George Klicos Depo. at 306-07. At a meeting on March
19, 2015, Saffo informed MDTA that "Klicos is no longer
a part of the project." [ECF No. 86-11].
total, over the course of the Project, Saffo paid Klicos a
total of $2, 738, 600.73. Klicos Mot. Exh. 9. The total
expenses incurred by Klicos amounted to $1, 002, 043.26,
Klicos Mot. Exh. 16, and the total gross payroll expended by
Klicos amounted to $1, 006, 045.52. Saffo Mot. Exh. 17.
on the Project, Klicos constructed a recycling unit upon a
trailer owned by and registered to Klicos. Kominos Hatzileris
Depo. at 47-49. Other expenses for the construction of the
unit were billed to Saffo through the invoices submitted.
George Klicos Aff. IT (July 15, 2017) at ¶ 10. Upon
Klicos's departure from the job site in March, 2015,
Klicos removed the recycling unit. Kominos Hatzileris Depo.
at 82. According to the Saffo employee, Michael Ost, the two
companies were going to distribute machines "between the
two parties, assuming the successful completion of the
project. It had not been determined who would take
what." Ost Depo. at 124-25. Nick Saffo testified that,
as to equipment, "If we purchased anything in the cost,
that we were going to take a look at it at the end."
Nick Saffo Depo. at 78. Finally, Ost also testified that the
recycling unit "was going to be split at the end of the
project, whether or not it was a dollar value, we never
really came to terms." Ost Depo. II at 435.
Rule of Civil Procedure 56(c) provides that summary judgment
"should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c)(2). Whether a fact is material depends
upon the substantive law. See Anderson v. Liberty Lobby,
Inc., Ml U.S. 242, 248 (1986).
party opposing a properly supported motion for summary
judgment 'may not rest upon the mere allegations or
denials of [his] pleadings, ' but rather must 'set
forth specific facts showing that there is a genuine issue
for trial."' Bouchat v. Baltimore Ravens
Football Club, Inc.,346 F.3d 514, 522 (4th Cir. 2003)
(alteration in original) (quoting Fed.R.Civ.P. 56(e)).
Conclusory or speculative allegations do not create a genuine
issue of material fact, nor does a "mere scintilla of
evidence[.]" Thompson v. Potomac Elec. Power
Co.,312 F.3d 645, 649 (4th Cir. 2002) (citing
Phillips v. CSX Transp., Inc.,190 F.3d 285, 287
(4th Cir. 1999)). The court must "view the facts and
draw reasonable inferences 'in the light most favorable
to the party opposing the [summary judgment] motion,
'" Scott v. Harris,550 U.S. 372, 378
(2007) (alteration in original) (quoting United States v.
Diebold,369 U.S. 654, 655 (1962) (per curiam)).
However, the court must abide by the "affirmative