United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE
contract dispute, Plaintiff MA Cleaning & Landscaping
Design, Inc. (“MA”), a subcontractor of Defendant
Banneker Ventures, LLC (“Banneker”), alleges that
Banneker and Travelers Casualty and Surety Company of America
(“Travelers”) are liable for work performed by MA
on a parking lot pursuant to a contract between Banneker and
the General Services Administration (“GSA”). The
parties have filed cross-motions for summary judgment, ECF
Nos. 57, 59. A motions hearing was held on July 30, 2019. ECF
No. 73. For the reasons that follow, Banneker's Motion
for Summary Judgment, ECF No. 59, is granted and MA's
Motion for Summary Judgment, ECF No. 57, is denied.
August 4, 2015, Banneker entered into a contract with GSA to
construct a parking lot at the Social Security
Administration. ECF No. 59-2 ¶ 1. Banneker hired MA as a
subcontractor to perform the excavation and fill for the
project. ECF No. 58-7 at 22. The subcontract specifically
required MA to “remove all dirt from the proposed
excavation site” and install the following materials
“per plan:” a twelve-inch layer of sand, a
fifteen-inch stone reservoir, a four-inch stone open grade
base, and a one-and-a-half-inch stone setting bed.
Id. For this work, MA was to be paid $225, 384.50.
Id. at 2.
referenced plan was a set of drawings created by GSA.
See ECF No. 58-6. The drawings depict the bottom of
the excavation as declining from one side of the parking lot
to the other in a series of steps, above which the sand,
stone reservoir, stone open grade base, and stone setting bed
were to be installed. Id. The drawings state in
multiple places “bottom of stone base must be
level.” Id. Note six of the drawing, which
appears in the bottom left corner, states, “The bottom
of the sub-base shall be level with adjustments accomplished
by stepping subgrade levels . . .” Id.
commenced execution of the contract, and, on November 18,
2015, Banneker was provided with the “revised
cutsheets” for the project, which provided proposed
elevations and fill for various points on the project. ECF
No. 1-5. at 6. But on November 24, 2015, Banneker sent an
email to MA stating that MA's crew did “not
understand how to perform the . . . excavation.” ECF
No. 59-7. MA was attempting to cut the bottom of the
excavation on a slope, and the Banneker Superintendent
refused to allow them to do so. Id. MA asked
Banneker to submit a Request for Information
(“RFI”) to GSA, who had created the drawings, and
Banneker did so on December 3, 2015, seeking the elevations
of the various steps in the drawings. ECF No. 58-8 at 1. GSA
provided the elevations and, on Wednesday, December 9, 2015,
Banneker submitted another RFI to GSA, explaining that MA had
taken the position that the stepped elevations required, in
certain areas, from 36 inches to 48 inches of sand to be
installed-far in excess of the 12 inches of sand listed in
the subcontract-and asking for advice on how to proceed. ECF
No. 58-9. The RFI also stated that “there is a cost
associated with the additional material.” Id.
On the same day, Banneker told MA not to wait for a response
from GSA, as it could not expect to get an approval for the
“additional material” by the following Monday.
ECF No. 58-10. Thus, Banneker directed MA to “begin the
fill given the contract and costs that are already in place,
” and warned MA that if it refused to begin the infill
within the next five days, it would cause the project to fall
behind schedule and be in default of the contract.
Id. Banneker informed MA that for every day it did
not comply with the schedule, it incurred $350/day in
liquidated damages, the cost of which would be shared with
MA. ECF No. 58-11.
proceeded to install all of the material required by the
revised cut sheets pursuant to the RFIs returned by GSA. ECF
No. 58-12. But in response to MA's contentions that
additional compensation was required to fulfill these
obligations, Banneker sent a letter on December 15, 2015
explaining that MA had misinterpreted the contract drawings,
and that Banneker maintained the expectation that MA would
complete its work “per the contract drawings.”
ECF No. 59-3 at 2.
proceeded to hire iDesign Engineering, Inc.
(“iDesign”) to compare the original contract plan
and the revised cut sheets, and on December 29, 2015, iDesign
sent a letter to MA concluding that there were
“discrepancies between the proposed elevations of the
bottom of stone base on the [contract] and the proposed
elevations on the cut sheets.” ECF No. 58-13 at 3. On
December 30, 2015, MA sent a Change Order Proposal to
Banneker, stating that it had “incurred additional
costs and expenses in fulfilling its contractual obligations
under the Contract.” ECF 58-12; see also ECF
No. 58-7 at 7-8 (contract between Banneker and MA providing
for the submission of a change order if the subcontractor
seeks a change in the price). But because Banneker agreed
with GSA that the original drawings accurately depicted the
required work for MA, it refused to submit the change order
to GSA. See ECF No. 59-1 at 2. MA then sent a
January 13, 2016 letter to GSA seeking reimbursement for the
additional costs, which was denied. ECF No. 59-8. On this
same date, iDesign sent a letter to MA answering its
follow-up questions, in which it observed that MA's
assumption that it would only excavate 38 inches for the
entire area of the parking lot was a misreading of the
original plans as to fill volume. ECF No. 59-4.
contract between Banneker and MA contains several
“pay-if-paid” clauses, which states that
Banneker's obligations to make payments under the
Agreement are subject to the “express condition
precedent” of payment by the GSA. See, e.g.,
ECF No. 58-7 at 3. The contract also contains a provision
waiving its rights to any payments under the Miller Act.
Id. at 19 (“Subcontract expressly waives any
claim to . . . a basis for payment different from
[Banneker's reimbursements from GSA under the contract],
including but not limited to any contrary rights arising
under 40 USC 270a and/or 270b.”).
STANDARD OF REVIEW
Fed.R.Civ.P. 56, summary judgment is appropriate only when
the Court, viewing the record as a whole and in the light
most favorable to the nonmoving party, determines that there
exists no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The
burden is on the moving party to demonstrate that there
exists no genuine dispute of material fact. Pulliam Inv.
Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). To defeat the motion, the nonmoving party must submit
evidence showing facts sufficient for a fair-minded jury to
reasonably return a verdict for that party. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Under
Fed.R.Civ.P. 56, a party must be able to put facts to be
considered in support of or opposition to a motion for
summary judgment in an admissible form. See Williams v.
Silver Spring Volunteer Fire Dep't, 86 F.Supp. 398,
407 (D. Md. 2015).
for summary judgment require that the Court consider
“each motion separately on its own merits to determine
whether either of the parties deserves judgment as a matter
of law.” Rossignol v. Voorhaar, 316 F.3d 516,
523 (4th Cir. 2003). “The Court must deny both motions
if it finds a genuine issue of material fact, ‘but if
there is no genuine issue and one or the other party is
entitled to prevail as a matter of law, the court will render
judgment.'” Wallace v. Paulos, No. DKC
2008-0251, 2009 WL 3216622, at *4 (D. Md. 2009) (citation
first step for a court asked to grant summary judgment based
on a contract's interpretation is . . . to determine
whether, as a matter of law, the contract is ambiguous or
unambiguous on its face.” Wash. Metro Area Transit
Auth. v. Potomac Inv. Props., Inc., 476 F.3d 231, 235
(4th Cir. 2007). If the contract is unambiguous, the Court
can interpret the contract as a matter of law. Id.
If the contract is ambiguous, the court may examine extrinsic
evidence of the parties' intent. Id. At that
point, extrinsic evidence can either be dispositive as a
matter of law or can leave genuine issues of material fact
respecting the contract's proper interpretation.
Id. In the latter case, summary judgment should be
denied. Id. In sum, “summary judgment is
appropriate when the contract in question is unambiguous or
when an ambiguity can be definitely resolved by reference to
extrinsic evidence.” Id.