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American Property Construction Company v. Sprenger Lang Foundation

March 8, 2011

AMERICAN PROPERTY CONSTRUCTION COMPANY, PLAINTIFF/COUNTER-DEFENDANT,
v.
SPRENGER LANG FOUNDATION, ET AL., DEFENDANTS/COUNTER-PLAINTIFFS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This action involves a relatively straightforward contract dispute about construction services. Plaintiff/Counter-Defendant American Property Construction Company ("APCC") commenced suit against Defendants/Counter-Plaintiffs Paul Sprenger ("Sprenger"), Jane Lang ("Lang"), and the Sprenger Lang Foundation (collectively, "Defendants"), asserting claims for breach of express and implied contract based upon Defendants' alleged failure to remit payment for construction services provided by APCC. Through this action, APCC seeks to recover monetary damages in the amount of $339,727.50, exclusive of interest, as recompense for services provided. Presently before the Court is Sprenger and Lang's [37] Motion for Partial Summary Judgment,*fn1 which is directed towards challenging a discrete component of APCC's breach of contract claims-namely, a so-called "contingency" line item in the amount of $85,830. Contending that there was no "meeting of the minds" as to the "contingency" line item, Sprenger and Lang assert that summary judgment should be entered in their favor on this limited issue. Based upon the parties' submissions, the attachments thereto, the relevant authorities, and the record as a whole, the Court concludes that there remains a genuine dispute as to the meaning that the parties' attached to the "contingency" line item and, accordingly, Sprenger and Lang's [37] Motion for Partial Summary Judgment shall be DENIED.*fn2

I. BACKGROUND

APCC commenced this action against Defendants on July 2, 2009, asserting claims for breach of express and implied contract. See Compl., Docket No. [1]. From APCC's perspective, this action is a "straightforward collection case." Pl.'s Opp'n at 1. As set forth in the Complaint, APCC alleges that it was engaged by Defendants to provide general contracting services on an office building located at 1614 20th Street, N.W., Washington, D.C. 20009 (the "Property"). APCC contends that, despite satisfactorily performing the work as agreed, Defendants have failed to make full payment for services rendered. See generally Compl. Through the instant action, APCC seeks monetary damages in the amount of $339,727.50, exclusive of interest, a sum that accounts for a so-called "contingency" line item in the amount of $85,830. The nature of the "contingency" line item, and whether APCC may claim an entitlement thereto, is the subject of the present Motion for Partial Summary Judgment.*fn3

It is undisputed that the parties never entered into a formal, written agreement governing the terms and conditions of the work to be performed by APCC.*fn4 Indiv. Defs.' Stmt. ¶ 2; Pl.'s Stmt. ¶ 2. Regardless, APCC performed construction work at the Property over an extended period of time and, prior to commencing that work, prepared a written estimate as to the anticipated costs and expenses. Indiv. Defs.' Stmt. ¶ 5; Pl.'s Stmt. ¶ 5. The "initial budgeting spreadsheet," as it is characterized by APCC, identifies the bid-date as November 2, 2006 and places the total estimated cost for the contemplated construction services at $2,472,548. Pl.'s Stmt. Ex. F at APC-00030.*fn5 Following three pages of itemized expenditures, the written estimate divides the total estimated cost into eight categories:

Description Estimate Labor $440,900 Material $173,422

indicated, the narrative that follows rests on undisputed facts or those facts as to which there can be no genuine dispute, viewing the evidence in the light most favorable to APCC as the non-movant.

Subcontract $1,386,715

Equipment $26,950 Other $178,668 Overhead $88,266 Profit $91,797 Contingency $85,830 Total $2,472,548 Pl.'s Stmt. Ex. F at APC-00030. As set forth in the written estimate, the final three categories-overhead, profit, and contingency-are segregated from the remaining five. Id. The "contingency" line item, estimated at $85,830, is the sole focus of the present motion.

Despite the absence of a formal contract governing the parties' relationship, APCC performed construction work at the Property and, during the course of its work, submitted thirteen applications for payment. Indiv. Defs.' Stmt. ¶ 3; Pl.'s Stmt. ¶ 3. All thirteen applications, submitted more or less on a monthly basis over the period of approximately one year and seven months extending from December 31, 2006 through August 6, 2008, consistently identified the "scheduled value" for the "contingency" line item as $85,830. Indiv. Defs.' Stmt. ¶ 3; Pl.'s Stmt. ¶ 3 & Ex. G at APC-00145 (Dec. 31, 2006 Appl.), APC-00126 (Jan. 31, 2007 Appl.), APC-00121 (Feb. 28, 2007 Appl.), APC-00111 (Mar. 31, 2007 Appl.), APC-00102 (May 31, 2007 Appl.), APC-00092 (June 30, 2007 Appl.), APC-00077 (Aug. 31, 2007 Appl.), APC-00067 (Sept. 30, 2007 Appl.), APC-00060 (Oct. 31, 2007 Appl.), APC-00052 (Feb. 18, 2008 Appl.), APC-00043 (Apr. 28, 2008 Appl.), APC-00036 (June 2, 2008 Appl.), APC-00308 (Aug. 6, 2008 Appl.). While the "contingency" line item was consistently identified over time, it is undisputed that APCC did not actually seek payment for the "contingency" amount until it submitted its final two applications for payment: an application for payment dated June 2, 2008 sought payment for $40,000 of the "contingency;" and an application for payment dated August 6, 2008 sought payment for the remaining $45,830. Indiv. Defs.' Stmt. ¶ 3; Pl.'s Stmt. ¶¶ 3, 10 & Ex. G at APC-00036 (June 2, 2008 Appl.), APC-00308 (Aug. 6, 2008 Appl.). Sprenger and Lang never paid the designated amounts. Indiv. Defs.' Stmt. ¶ 10; Pl.'s Stmt. ¶ 10.

II. LEGAL STANDARD

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and [that it] . . . is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a "material" fact, and therefore "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be "genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record-including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence-in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass'n of Flight Attendants-CWA v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).

Moreover, where "a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact," the district court may "consider the fact undisputed ...


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