United States District Court, D. Maryland
WICKERSHAM CONSTRUCTION & ENGINEERING, INC.
THE TOWN OF SUDLERSVILLE, MARYLAND
Catherine C. Blake United States District Judge.
before the court is the plaintiffs motion for partial summary
judgment. On June 6, 2019, the court heard oral argument in
this matter. For the reasons stated below, the court will
deny the motion.
AND PROCEDURAL HISTORY
case involves, a prolonged contractual dispute between
plaintiff Wickersham Construction and Engineering
("Wickersham") and defendant the Town of
Sudlersville, Maryland ("Sudlersville"). The
parties have been engaged in a years-long disagreement
regarding Wickersham's construction of an updated
wastewater treatment system for Sudlersville, and the court
will recite only the relevant portions of the parties'
is a town located on the Eastern Shore of Maryland. Populated
by approximately 560 residents, Sudlersville is a small,
quiet community with two town employees and an annual budget
under $400, 000.00. Ex. 8, ECF 42-8 at ¶¶ 2-3.
Elizabeth Manning, Sudlersville's town administrator,
manages much of the town's affairs by working two days a
week from 9:30 a.m. until 5:00 p.m. and another partial day
each week from 1:00 p.m. until 5:00 p.m. Ex. 1, ECF 63-2 at
virtue of its proximity to the Chesapeake Bay, Sudlersville
was required to update its wastewater treatment system.
Unable to afford the approximately $8, 000, 000.00 update on
its own, the town received significant grant funding from the
federal and state government to enable Sudlersville to
finance the project. The sources of the grant funding
included the U.S. Department of Agriculture
("USDA") and the Maryland Department of the
Environment ("MDE"). Ex. 1, ECF 63-2 at p. 4.
18, 2014, the parties entered into a contract for the
installation and construction of the updated wastewater
treatment system. The contract is comprised of three separate
documents: the form of agreement, Ex. 2, ECF 56-4, the
standard general conditions, Ex. 3, ECF 56-5, and the
supplementary conditions, Ex. 4, ECF 56-6. The supplementary
conditions note that the USDA financed the project in whole
or in part, and that the USDA had to approve all payment
applications prior to payment being made. Ex. 4, ECF 56-6 at
¶¶ SC-101.A.2, SC-101.A.3.
contract was based on a form contract that USDA provided to
the parties, but a boilerplate paragraph requiring interest
for late payments was excluded from the final agreement.
See Ex. 2, ECF 56-4 at p. 4; Angela Tilghman Dep.,
Ex. 2, ECF 63-3 at p. 3. The USDA and the MDE were not
parties to the contract and were not involved in its
drafting, although the contract acknowledged explicitly that
the USDA funded the project. Ex. 4, ECF 56-6 at ¶
SC-1.01.A.2. The contract specified that it is to be governed
by Maryland law. Ex. 3, ECF 56-5 at ¶ 17.05. The parties
do not dispute that this contract is valid and enforceable.
contract obligated Sudlersville to pay Wickersham for its
construction services, and payments essentially were due
twenty days after Wickersham submitted the request for
payment, referred to as the "payment
application." Ex. 3, ECF 56-5 at ¶ 14.02. The
contract provided for twenty such payment applications. At
the time of oral argument, all of the payment applications
except payments nineteen and twenty, totaling approximately
$125, 000.00, had been satisfied, and the outstanding
payments form the center of the parties' dispute,
party disputed that every submitted payment application was
paid after the 20-day period. Ms. Manning claimed that, due
to the grant funding of the project, she would complete
payment requests immediately after receiving approval of the
requests and the related funds from MDE or USDA, with
KCI's certification. Ex. 1, ECF 63-2 at p. 12. Despite
the payment schedule outlined in the contract, no payments
were satisfied on time, and most were paid significantly
after the expiration of the 20-day period. Ex. 7, ECF 56-9 at
the first eight payments were paid late, and with payments
nine and ten past due, Wickersham notified Sudlersville on or
about September 9, 2015, that it was considering suspending
work on the project. Ex. 8, ECF 56-10. On September 22, 2015,
Wickersham suspended work. Ex. 9, ECF 56-11. In an attempt to
rectify the problems regarding its payments, Sudlersville
then obtained separate financing from Shore National Bank to
serve as an intermediary source of funds while the USDA
reviewed payment applications. In addition to the notices
regarding suspension, Wickersham sent Sudlersville at least
one letter regarding the delayed payments. Ex. 4; ECF 63-5.
On March 7, 2016, Wickersham resumed work on the project
following assurances from Sudlersville that it would make
payments on time due to its separate financing through Shore
National Bank. Ex. 1, ECF 56-2 at ¶¶ 8-9.
claimed that it reached substantial completion on the project
no later than November 3, 2016, Ex. 5, ECF 56-7 at p. 3, and
that it therefore terminated the project on September 19,
2017, Ex. 13, ECF 56-15 at p. 1. During the June 6 hearing,
Wickersham asserted that the plant's upgrades have
operated in compliance with the project's terms for three
years. As a result, Wickersham claimed that it has long been
owed payments nineteen and twenty, and that
Sudlersville's failure to complete these payments
constituted breach of contract.
disputed Wickersham's claim, asserting that, while the
plant was operational throughout the project's
construction, the project remains open under the terms of the
contract due to Wickersham's failure to satisfy certain
conditions precedent to termination of the contract. This,
Sudlersville claimed, insulated it from liability for failure
to complete the final two payment applications, as its
payment obligation could not be triggered absent completion
of those conditions precedent. Additionally, Sudlersville
noted that it had not, at the time of the June 6 hearing,
received approval of those payment applications from either
USDA or KCI, precluding it from completing the payment
applications pursuant to the contract's terms.
initiated suit on December 23, 2016, and filed its amended
complaint on January 1, 2018, after the parties were unable
to reach an agreement in mediation. Following oral argument
in this matter on June 6, 2019, the court now will deny the