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Klicos Painting Company, Inc. v. Saffo Contractors, Inc.

United States District Court, D. Maryland

May 30, 2018

KLICOS PAINTING COMPANY, INC., Plaintiff/Counter-Defendant
v.
SAFFO CONTRACTORS, INC., Defendant/Counter-Plaintiff.

          MEMORANDUM OPINION

          Richard D. Bennett, United States District Judge

         This dispute concerns the parties' compensation for their efforts to repair and paint various highway bridges in Maryland. A bench trial is scheduled to begin on June 18, 2018. (ECF No. 131.) The bench trial will address the parties' claims for unjust enrichment and the Defendant/Counter-Plaintiff's counter-claim for intentional misrepresentation. Now pending is the Defendant/Counter-Plaintiff's Motion in Limine to Exclude Plaintiff/Counter-Defendant's Expert Witnesses (ECF No. 132). This Court has reviewed the parties' submissions and conducted a hearing on May 24, 2018. For the reasons set forth below, the Motion in Limine (ECF No. 132) is DENIED WITHOUT PREJUDICE.

         BACKGROUND

         I. Factual Background

         On July 29, 2013, the Maryland Transportation Authority (“MTA”) awarded the Defendant/Counter-Plaintiff, Saffo Contractors, Inc. (“Saffo”), a contract to repair and paint various highway bridges on I-95 and I-395. At some point, Saffo and the Plaintiff/Counter-Defendant, Klicos Painting Company (“Klicos”), agreed to perform the work together, but the parties disagree as to the nature of that agreement.

         Klicos performed work on the project from approximately March 2014 through November 2014. Klicos stopped work in December 2014, citing weather conditions, but some Klicos employees returned to the jobsite in February or March 2015. In February 2015, Klicos submitted an invoice to Saffo for $200, 000. According to Saffo, Klicos promised to return workers immediately to complete the job if the invoice was paid. Saffo paid the invoice. In March 2015, Klicos sent another invoice to Saffo for $345, 000, which Saffo declined to pay. Klicos then withdrew from the project.[1] Before Klicos abandoned the project, Saffo paid Klicos a total of $2, 738, 600.73.[2]

         Klicos filed suit against Saffo on August 24, 2015 (ECF No. 1). Saffo answered with counter claims on September 28, 2015 (ECF No. 11). Klicos answered the counter-claims on October 14, 2015 (ECF No. 13), and filed an Amended Complaint on June 16, 2016 (ECF No. 35).

         II. Discovery & Experts

         After filing answers, the parties engaged in discovery. Under the Court's revised Scheduling, the deadline for expert disclosures was May 10, 2017, with May 31, 2017 as the supplementation deadline. (ECF No. 80.) On December 30, 2016, Klicos served a brief expert disclosure designating Scott Lowe, Professional Engineer (“P.E.”), and Anthony (“Tony”) Ardito, Certified Public Accountant (“CPA”), as expert witnesses. (Saffo Ex. 1, Pl. Expert Disclosure.) On March 1, 2017, Klicos served a report by its two expert witnesses. (Saffo Ex. 2, Klicos Expert Report, ECF No. 132-2.) In the report, the experts opined as to the amount of Saffo's alleged profits and the amount of 50% of those profits. (Id. at 12.) On March 31, 2017, Saffo's expert, Forensic Resolutions Inc. (“FRI”) completed its report. On April 28, 2017, Klicos produced a rebuttal report in which the experts criticized the methodology and opinions of Saffo's expert. (Saffo Ex. 3, Klicos Rebuttal Report., ECF No. 132-3.)

         On June 8, 2017, Saffo deposed Klicos's expert witnesses.[3] At the conclusion of the deposition of Tony Ardito, the CPA, Klicos's counsel (Mr. Walter) questioned his own expert as follows:

Q. Are you prepared to render an opinion regarding the value of the work performed by Klicos on this job?
A. I have basically looked at the amount of -- the items in the schedule of values totaled about 5.7 million, representing -- called cleaning and painting. So that's -- from a schedule of values standpoint, a piece of that represents Klicos's value of work. I did not calculate their exact portion, but that's the starting point. 5.7 million is the value of work delivered.
Q. Okay. And you indicated that -- in your testimony a few moments ago, that 75 percent or thereabouts of the painting work was completed by Klicos, correct?
A. That's correct.

(Saffo Ex. 4, Ardito Dep. at 78, ECF No. 132-3.) Upon further questioning by Saffo's counsel, Mr. Ardito then testified as follows:

Q. You would agree with me that the opinions that you just expressed in response to Mr. Walter's questions about the value of Klicos's services are not stated in the report that's marked as Exhibit-2, correct?
A. Correct.

(Id. at 80.)

         Mr. Lowe, the engineer, testified: “My understanding of my scope was to determine the profit and then the split of that profit on the basis of my understanding of their agreement.” (Saffo Ex. 5, Lowe Dep. at 98, ECF No. 132-5.) He went on to testify as follows.

Q. And you didn't express any opinions in this report regarding the reasonable value of Klicos's services performed on the project, apart from any entitlement to a 50/50 split?
A. I think we did consider that for sure.
Q. So, in other words, assuming there was no agreement to a 50/50 split, what Klicos would be entitled to in terms of reasonable payment for its work on the project, that's not an opinion that you rendered in this report, is it?
A. Well, to some extent it is. I mean, I would say it this way. I would say yes, in the sense that they would be entitled to reimbursement for the value of their work. So the agreement between the parties was cost and a split of profits. The value of the work, you just wouldn't split the profits. Klicos would be entitled to [the] value of the work and a hundred percent of the profit on that work.

(Id. at 128.) Mr. Lowe stated that he had no opinion as to what would be a “reasonable” profit. (Id. at 131-32.)

         III. Summary Judgment

         On April 21, 2017, Saffo moved for summary judgment. (ECF No. 76.) Klicos moved for partial summary judgment on June 30, 2017. (ECF No. 98.) On September 6, 2017, Judge Motz of this Court granted in part and denied in part Saffo's motion for summary judgment and granted in part and denied in part Klicos' motion for partial summary judgment. (ECF Nos. 105, 106.) Judge Motz also noted the recovery for the parties' unjust enrichment claims would be “measured by ‘the actual value realized by the defendant, ' and not the market value of the plaintiff's services rendered.” (ECF No. 105 at 9 (citing Dolan v. McQuaide, 215 Md.App. 24, 37-38 (Md. Ct. Spec. App. 2013)).) More specifically, “the operative question will be whether the actual value realized by Saffo for Klicos's work is more or less than $2, 738, 600.73.” (ECF No. ...


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