United States Court of Appeals for the Federal Circuit
October 8, 1999
J. LEONARD SPODEK, NATIONWIDE POSTAL MANAGEMENT, APPELLANT,
WILLIAM J. HENDERSON, POSTMASTER GENERAL, APPELLEE.
Before Michel, Bryson, Circuit Judges, and Friedman, Senior Circuit
The opinion of the court was delivered by: Michel, Circuit Judge.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
J. Leonard Spodek, d/b/a Nationwide Postal Management, appeals the September 26, 1997 decision of the Postal Service Board of Contract Appeals finding that Spodek is not entitled to recover $4,380, the partial cost of repairing and resealing the parking lot of the property leased by the United States Postal Service ("USPS"). See PSBCA No. 3833. We affirm.
In 1970, the USPS leased property from Spodek and used the property as a post office. By 1993, the paved parking lot at the post office was significantly deteriorated and the USPS requested Spodek to repair it. Spodek paid a contractor $2,800 to repair the potholes and $2,980 to reseal the lot. Spodek requested the USPS to pay $4,380, which equals one-half of the cost of repairing the potholes and the entire cost of resealing the pavement. Spodek reasoned that the potholes were due to the USPS's negligence in failing to properly weed and clean the lot and therefore the USPS should be liable for one-half the costs of the pothole repairs. Spodek also contended that under the terms of the contract, the USPS was responsible for the cost of resealing the lot.
On May 11, 1995, the Contracting Officer issued a final decision denying Spodek's claim for $4,380, finding that under the terms of the lease Spodek was liable for the full amount of the repairs. Spodek timely appealed to the Board. See PSBCA No. 3833.
On September 26, 1997, the Board affirmed the Contracting Officer's decision. The Board found that it was Spodek's responsibility under the lease to maintain the parking lot in good repair and tenantable condition and that this duty included repairing the potholes. The Board further found that Spodek had not shown that deterioration of the pavement was due to acts or negligence by the USPS.
The Board found that Spodek did not have a duty to reseal the parking lot because resealing is preventive maintenance and, except as necessary to keep the premises in good repair and tenantable condition, the lease does not require Spodek to perform preventive maintenance. However, the Board found because there is nothing in the lease that requires the USPS to perform or pay for preventive maintenance, the USPS is not obligated to reimburse Spodek when he performs preventive maintenance. Spodek appeals.
We must affirm the Board's factual findings unless Spodek can show that the findings are "fraudulent, or arbitrary, or capricious, or so grossly erroneous as to necessarily imply bad faith, or if such decision is not supported by substantial evidence." See 41 U.S.C. § 609(b) (1994). However, the Board's interpretation of the contract is a question of law and thus not binding on this court. See Samsung Elecs. Am. Inc. v. United States, 106 F.3d 376, 379 (Fed. Cir. 1997).
The maintenance provision of the lease provides that the lessor [Spodek] shall, unless herein specified to the contrary, maintain the demised premises, including the building and any and all equipment, fixtures, and appurtenances, whether severable or non-severable, furnished by the lessor under this lease in good repair and tenantable condition except in case of damage arising from the act or the negligence of the Government' s agents or employees ¶ 7 (emphasis added).
We agree with the Board's construction of the contract. The maintenance provision mandates that it is Spodek's duty to maintain the premises in good repair. If the parking lot needed to be repaired in order to keep it in "good repair and tenantable condition," it was Spodek's duty to make the repair. See Romala Corp. v. United States, 20 Ct. Cl. 8, 12 (Cl. Ct. 1990) (holding that, under terms of a contract virtually identical to those at issue in this case, the lessor was responsible for repairs made to the heating system to keep the system in "good repair").
The Board found that the numerous potholes and cracks in the parking lot were safety hazards for anyone who had to walk across it and thus the parking lot was not in "good repair." Because repairing the cracks and potholes was necessary to return the lot to good repair and tenantable condition, Spodek is responsible for the costs of those repairs.
Under the terms of the contract, however, Spodek would not be responsible for the cost of returning the premises to good repair if the damage was the result of the USPS's negligence. See id. at 12-13 (holding that lessor is not liable for cost of repairing damage done to the premises in order to restore the premises to "good repair" if the damage was the result of the lessee's negligence). The burden is on Spodek to demonstrate that the damage to the parking lot was the result of negligence on the part of the USPS. See id. at 13.
The Board found no evidence of government negligence or of any nexus between the USPS's actions and the condition of the parking lot. It was the USPS's practice to periodically weed and clean oil spills. The Board found no evidence that these housekeeping duties breached any duty to Spodek or that there was any connection between the USPS's housekeeping practice and the damage to the parking lot. In making this finding, the Board found that while there were some weeds in cracks in the pavement and some oil stains in the lot, none of these areas were shown to have been near the potholes or broken pavement that required repair. Spodek has not shown that the Board's findings were fraudulent, arbitrary, or capricious, or unsupported by substantial evidence. As such, we affirm the Board's holding that Spodek is liable for the cost of repairing the potholes.
We also affirm the Board's Conclusion that the USPS is not obligated to reimburse Spodek for the cost of resealing the lot. Spodek contends that because the lease does not require Spodek to perform preventive maintenance, we should infer that the lease requires the USPS to pay for all preventive maintenance. We reject this argument as illogical.
Under the maintenance provision of the lease, no party is under a contractual duty to perform maintenance work until a point of advanced disrepair, at which point Spodek is responsible for returning the premises to good repair. See Penner v. United States Postal Serv., 879 F. Supp. 553, 563 (M.D.N.C. 1995).
Spodek chose to repair the lot by both filling in the potholes and cracks and resealing the lot. The Asphalt Institute recommends that preventive maintenance for parking lots include resealing the lot to prevent water penetration below the paving. Having decided to apply a seal coat to the patched lot, whether for preventive maintenance or for repair, Spodek cannot require that the USPS pay for it. At no point did the USPS concede that it was responsible for resealing the lot or agree to pay for the resealing. Thus, we hold the USPS is not obligated to reimburse Spodek for resealing the lot.
Spodek alternatively contends that the USPS is liable for the cost of the seal coating under a theory of unjust enrichment. However, although Spodek argues he raised the issue impliedly, we do not agree that he fairly presented an unjust enrichment claim to the Board, and so we will not consider it now. This court will not address issues raised for the first time on appeal.
If Spodek believed that patching the potholes and cracks was sufficient to return the parking lot to good repair, then he should have stopped work on the parking lot at that point. We further note that a sensible owner reseals the parking lot to prevent decay that will eventually occur if no resealing is done. Such actions preserve the value of the property and thus benefit the owner.
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