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MA Cleaning & Landscaping Design, Inc. v. Banneker Ventures LLC

United States District Court, D. Maryland, Southern Division

August 8, 2019

MA CLEANING & LANDSCAPING DESIGN, INC., Plaintiff,
v.
BANNEKER VENTURES, LLC, AND TRAVELERS CASULATY AND SURETY COMPANY OF AMERICA Defendants.

          MEMORANDUM OPINION

          GEORGE J. HAZEL, UNITED STATES DISTRICT JUDGE

         In this 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.

         I. BACKGROUND

         On 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.[1] 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.

         The 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.

         MA 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.

         MA 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.

         MA 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.

         The 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.”).

         II. STANDARD OF REVIEW

         Under 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).

         Cross-motions 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 omitted).

         “The 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.

         III. ...


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