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July 17, 1996


James Robertson, United States District Judge

The opinion of the court was delivered by: ROBERTSON

Plaintiff Shalom Baranes Associates, P.C. (SBA), an architecture firm, complains that defendants have violated its copyright in a document titled "A Feasibility Study Prepared for 900 F Street Associates Limited Partnership" and breached their agreements to pay for architectural services rendered. Defendants, by way of counterclaim, complain that SBA has unlawfully withheld architectural plans that are the property of 900 F Street Associates Limited Partnership. SBA's motion for preliminary injunction based on its copyright claim was denied in an opinion and order dated May 9, 1996. Trial of the remaining claims was held, by the Court sitting without a jury, on June 10, 1996.


 Defendant 900 F Street Corporation is the general partner of 900 F Street Associates Limited Partnership, which owns a large, unrenovated office building located at 900 F Street, Washington, D.C. R. Donahue Peebles is president of 900 F Street Corporation. He is also president of defendant R. Donahue Peebles Companies, Inc. The limited partnership, its general partner, and the Peebles Companies all use the same offices and mailing address.

 In the Spring of 1994, Peebles talked with Shalom Baranes about whether his firm would perform architectural services in connection with the renovation and marketing of 900 F Street. Peebles and Baranes reached an informal understanding, and the architecture firm began work sometime after April 1, 1994. A subsequent letter, signed by Baranes and Peebles and dated August 4, 1994, is the only written memorandum of the agreement. Baranes prepared the letter. Peebles signed it "R. Donahue Peebles, President, 900 F Street Corporation for 900 F Street Associates Ltd. Ptshp." Attached to the letter -- but never signed by Peebles -- was the standard form contract of the American Institute of Architects. The signed letter incorporated by reference one provision of the AIA agreement, Article 12.1, which spelled-out SBA's scope of work in "Phase One" of the project. *fn1" The letter stated that "this proposal letter temporarily substitutes for the AIA Agreement" and that SBA's fees would be "$ 38,500 plus reimbursables." The letter concluded, "we will proceed with additional work only after receiving written authorization from you."

 SBA sent Peebles its first invoice for the Phase One work on July 11, 1994. As work continued, the firm submitted invoices to Peebles on a monthly basis. At some point, Peebles told Baranes that SBA's fees would be paid from funds in a "lock box" account controlled by an agent of the Resolution Trust Corporation (RTC), which held a mortgage on the 900 F Street property.

 In the fall of 1994, Peebles asked SBA to prepare a submission in response to a solicitation for offers from the General Services Administration. GSA was seeking temporary office space for the Department of Justice. SBA undertook to perform the work in a December 1, 1994 memorandum to Keith McIntosh, a Peebles employee. SBA stated that the project was "an additional service" and that its estimated fee would be approximately $ 3,500 for the "initial submittal" to GSA.

 By January 1995, the Baranes firm had completed and invoiced substantially all of the Phase One work contemplated by the August 1994 letter, including a submission to the D.C. Board of Zoning Adjustment for a zoning variance. The initial submission to GSA was also complete. Monthly invoices now totaled approximately $ 38,000 for work under the August 1994 letter agreement, several thousand dollars in "reimbursables," and $ 3,500 for the GSA submission (invoiced as "DOJ Submittal").

 At about this time, Baranes called Peebles to discuss the fact that SBA had not been paid for any of its work. Peebles apologized and said he had not seen the earlier bills. Baranes caused additional copies of all the monthly invoices to be hand-delivered to Peebles' offices on January 12, 1995.

 GSA responded positively to the "initial submittal" SBA had prepared. Baranes testified without contradiction that, sometime after December 1, 1994, he and Peebles discussed going after the GSA contract; that he told Peebles the GSA proposal would involve protracted discussions and negotiations; and that SBA would bill for that work on an hourly basis. Baranes also testified that Peebles agreed to pay for the work on those terms. Peebles testimony was that Baranes never informed him that fees for the GSA work would exceed the $ 3,500 estimate given for the "initial submittal."

 From January through March 1995, SBA architects attended a series of meetings with GSA and DOJ officials, responded to GSA requests for information, and, ultimately, prepared new drawings and made new calculations of floor space for the building. The Charles E. Smith Company, a real estate broker hired by the limited partnership to market 900 F Street to GSA, worked with SBA on the project. Memoranda between SBA and the Smith Company outline some of the architectural work requested and performed; copies of them were sent to Peebles. Peebles asked that Baranes attend one meeting with government officials during this period, and Peebles was present at other meetings when SBA architects discussed their work. SBA prepared and sent monthly invoices for those services; its professional fees totaled approximately $ 19,000. *fn2" With the exception of a few phone calls and one visit to the Board of Zoning Adjustment in July regarding the pending zoning variance application, SBA had completed its work on all 900 F Street projects by March 31, 1995. *fn3"

 When SBA's bill was still unpaid in May, SBA turned the matter over to its attorneys and filed the first of two mechanic's liens. *fn4" On June 23, 1995, through counsel, SBA also demanded the return of its architectural drawings. During July and August, the parties unsuccessfully pursued a settlement. To date, SBA has not been paid for any of its work.

 SBA registered its copyright in the feasibility study and underlying architectural drawings on November 22, 1995. Peebles had earlier provided a copy of the feasibility study to Jayne Shister of Cassidy & Pinkard, a real estate broker hired by the limited partnership to find a buyer for 900 F Street. Shister copied two columns of numbers from the feasibility study, representing 900 F Street's "inside gross" and "total rentable" areas, into Cassidy & Pinkard's "Offering Memorandum" on the building. The memorandum was distributed to an unspecified number of prospective purchasers of the ...

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