United States District Court, D. Maryland
UNITED STATES, for the use and benefit of MANGANARO MIDATLANTIC LLC
GRIMBERG/AMATEA JV, JOHN C. GRIMBERG COMPANY, INC., AMATEA, LLC and HARFORD ACCIDENT AND INDEMNITY COMPANY
XINIS UNITED STATES DISTRICT JUDGE
Plaintiff Manganaro Midatlantic, LLC (“MMA”)
brings this lawsuit against defendants Grimberg/Amatea JV
(“GAJV”), John C. Grimberg Company, Inc.
(“Grimberg”), and Amatea, LLC
(“Amatea”) seeking damages for breach of
contract. Now pending is MMA's motion for partial summary
judgment. (ECF No. 25). MMA seeks summary judgment in the
amount of $216, 506.38, leaving $1, 249.00 in dispute to be
litigated at trial. The parties have fully briefed the
motion, and no oral argument is necessary. See Local
R. 105.6. For the reasons set forth below, Plaintiff's
motion for partial summary judgment is denied.
dispute concerns allegedly unpaid sums arising under a
construction subcontract. (ECF No. 1 & 1). On or about
September 4, 2012, defendant GAJV entered into a prime
contract (“Prime Contract”) with the Department
of Army, Corps of Engineers (“Corps”) for the
construction of an addition and renovation to the Defense
Information School at Fort Meade, Maryland
(“Project”). (ECF No. 1 & 1, 10). GAJV is an
unincorporated joint venture comprised of two construction
companies, defendants Grimberg and Amatea. (ECF No. 1 &
10). On January 31, 2013, GAJV entered into a drywall,
masonry, and acoustical subcontract
(“Subcontract”) with MMA. (ECF No. 25-3, p. 2).
The Subcontract defined MMA's scope of work:
Furnish and install drywall systems, acoustical ceiling
systems, acoustical wall treatment, plaster systems, spray
foam insulation, building insulation, and air vapor barrier
trades complete per plans, specifications, and addenda.
(ECF No. 25-3, p. 2).
original Subcontract sum, subject to adjustments by Change
Order or other Subcontract provisions, was $2, 350, 000. (ECF
No. 25-3, p. 2). MMA invoiced GAJV a total of $2, 780, 153
for its work on the Project. (ECF No. 25-23, p. 2). GAJV has
paid MMA $2, 562, 397.62 to date, leaving an allegedly
outstanding balance of $217, 755.38. (ECF No. 25-6, p. 7).
GAJV contends that MMA is owed no further monies. More
specifically, GAJV argues that (1) MMA is not entitled to
payment on three Change Orders totaling $184, 131 and (2)
GAJV is entitled to set-off for seven backcharges that it
assessed against MMA, totaling $86, 165.03. (ECF No. 26, p.
4). The propriety of three Change Orders and six backcharges
are centrally featured in this motion.
August 4, 2014, the Corps issued a stop work order on the
Project, which put a temporary end to MMA's work. (ECF
No. 25-10, p. 8). The stop work order remained in effect
until March 6, 2015, and caused MMA to incur additional costs
to perform its scope of work. (ECF Nos. 26-15, p. 10, 25-10,
p. 3). Accordingly, MMA submitted three Change Order requests
for (1) sheathing and inefficiencies, (2) scheduling impacts,
and (3) material escalation, adding $184, 131 to the contract
price. (ECF No. 25-9, p. 3; ECF No. 25-10, p. 3; ECF No. 25-
11, p. 3). MMA attributed the Change Order requests to
“cost impacts due to schedule changes including
schedule changes attributed to stop work order.” (ECF
No. 25-10, p. 3).
accordance with the Prime Contract, GAJV submitted a proposal
to the Corps for the increased costs resulting from the stop
work order, including MMA's Change Order requests. (ECF
No. 26-15, p. 2-6). The Corps in response advised GAJV that
it “[was] unable to process this request with the
information as provided.” (ECF No. 26-16, p. 2). The
Corps instructed further as to additional information needed
to justify MMA's Change Order requests. (ECF No. 26-16,
p. 2-3). MMA, according to GAJV, failed to provide the Corps
with this required additional information and failed to
comply with the dispute process under the Subcontract. (ECF
No. 26-6, p. 45). MMA does not dispute these contentions but
rather contests the legal applicability of the pertinent
also issued adjustments to MMA's account in accordance
with the following Change Order requests: (1) GAJV Add/Deduct
Number 12 in the amount of $21, 419 for Sheathing and
Inefficiencies, (2) GAJV Add/Deduct Number 13 in the amount
of $75, 940 for Scheduling Impacts, and (3) GAJV Add/Deduct
Number 14 in the amount of $86, 772 for Material Escalation.
(ECF No. 25-9, p. 2; ECF No. 25-10, p. 2; ECF No. 25-11, p.
2) (Collectively the “Change Orders”). GAJV
required MMA to bill for each change and subjected each
Change Order to the same terms and conditions stated in the
original Subcontract. Id.
signed, returned, and invoiced for the Change Orders.
Id. GAJV claims that MMA's invoices did not
comply with the Subcontract because the Change Orders had not
been first approved by the Corps prior to invoicing. (ECF No.
26, p. 19; ECF No. 25-3, p. 2; ECF No. 26-16, p. 2). MMA
contends that GAJV has already paid MMA $184, 131 for the
Change Orders and is instead withholding base contract money
from MMA. (ECF No. 25-1, p. 7). GAJV disputes that such
payment is for the Change Orders, and claims that MMA is not
due any outstanding payments. (ECF No. 26-6, p. 14, 18, 20).
relies on GAJV's Committed Cost Status Report
(“Report”) to support its claim that GAJV has
paid MMA for the Change Orders. (ECF No. 25-14, p. 2).
Relevant to this dispute are the columns on the report titled
“Total Invoiced, ” “Amount, ”
“Amount Paid, ” and “AP Balance.”
(ECF No. 25-14, p. 2). For the Sheathing and Inefficiencies
Change Order, Job Proposal Number 71-831-147, the Report
lists the “Total Invoiced” and
“Amount” as $21, 419.00. Id. The
“Amount Paid” is 21, 419.00 and the “AP
Balance” is zero. Id. For the Change Order for
Scheduling Impacts, Job Proposal Number 71-831-152, the
Report lists the “Total Invoiced” and the
“Amount” as 75, 940.00. Id. The
“Amount Paid” is 75, 940.00 and the “AP
Balance” is zero. For the Change Order for Material
Escalation, the Report lists the “Total Invoiced”
as 86, 772.00 and the “Amount” as 34, 708.80.
Id. The “Amount Paid” is 34, 708.80 and
the “AP Balance” is zero. Id. According
to MMA, the Report's listing of the balance for each
Change Order as zero shows GAJV has paid for the Change
Orders. (ECF No. 25-1, p. 18).
notes on the Report from Kimberly Graham indicate that the
Corps neither paid for nor approved the Orders, and thus
signify that GAJV never intended to pay any Change Order
amounts that were marked “0%.” (ECF No. 26-3, pp.
3, 7). By contrast, “100%” in the same
handwriting appears on other job proposals on the Report,
indicating that the Corps approved the proposal and it was
paid in full. (ECF No. (ECF No. 25-14) 26-3, p. 6). Graham
further attested that the line items in the “Amount
Paid” column do not in fact reflect amounts paid
because her unfamiliarity with the cost reporting system led
to inaccurate entries. Id. at 3.
October 2016 and January 2017, GAJV served MMA with seven
backcharges, six of which are relevant to MMA's current
motion. (ECF No. 25-1, p. 7). Three of the backcharges,
totaling $38, 035.74, concern exterior plywood sheathing.
(ECF No. 25-15, p. 2, 6, 14). The fourth backcharge,
amounting to $17, 595, is for sealing fire walls. (ECF No.
25-19, p. 2). Fifth is a backcharge for labor assistance,
totaling $11, 231. (ECF No. 25-21, p. 2). The final
backcharge, amounting to $18, 054, is for sprinkler
adjustments. (ECF No. 25-22, p. 2). MMA contends the
backcharges are without merit and should not reduce
outstanding amounts owed under the Subcontract. (ECF No.
25-1, p. 7).
regard to the plywood wall sheathing backcharges, MMA's
scope of work under the Subcontract includes furnishing and
installing drywall systems. (ECF No. 25-3, p. 2). GAJV claims
that plywood sheathing is part of furnishing and installing
drywall systems, pointing to contract drawings to support
this claim. (ECF No. 26-6, p. 22, 27). MMA, however, insists
plywood sheathing was not included in the scope of the
Subcontract, making this backcharge invalid. (ECF No. 25-1,
Sealing Fire Walls
to GAJV, MMA failed to install wall assemblies that complied
with applicable fire-rating standards. (ECF No. 26-6, p. 32).
In backcharging MMA for this work, GAJV provided MMA
photographs of wall assemblies that failed to meet
fire-rating standards. (ECF No. 26-6, p. 33-35; ECF No. 26-8,
p. 2-3). Although GAJV contends that this work fell within
MMA's scope of work as part of the installation of wall
systems (ECF No. 26-6, p. 32; ECF No. 25-3, p. 2), MMA
characterizes this same work as for firestopping, which was
specifically excluded from MMA's scope of work in the
Subcontract. (ECF No. 25-3, p. 2; ECF No. 25-1, p. 25). GAJV
argues that this backcharge is invalid as outside the scope
of MMA's work. (ECF No. 25-1, p. 26).