Caroline County v. Dashiell

747 A.2d 600

358 Md. 83

COUNTY COMMISSIONERS OF CAROLINE COUNTY, Maryland v. J. ROLAND DASHIELL & SONS, INC.

No. 81, Sept. Term, 1999.

Court of Appeals of Maryland.

February 11, 2000.

Reconsideration Denied April 7, 2000.

Anthony L. Meagher (Brett Ingerman, Piper, Marbury, Rudnick & Wolfe, LLP, on brief), Baltimore, for petitioner.

J. Edward Martin (Law Office of J. Edward Martin, P.A.), Towson; Russell D. Dashiell, Jr. (Widdowson & Dashiell, on brief), Salisbury, for respondent.

CATHELL, Judge.

On July 10, 1997, J. Roland Dashiell & Sons, Inc. (Dashiell), respondent, filed a complaint in the Circuit Court for Caroline County against the County Commissioners of Caroline County (County), petitioner, and Greenhorne & O'Mara, Inc. (Greenhorne), claiming damages in excess of $2,000,000.00 for the alleged extra cost of work and delays and seeking the payment of $326,621.00 withheld by the County as liquidated damages pursuant to the Standard Form of Agreement Between Owner and Contractor dated February 22, 1994 (Dashiell Contract).

On August 5, 1997, respondent filed an amended complaint. On August 26, 1997, petitioner filed a Motion to Dismiss on the ground that respondent's claims under the Dashiell Contract were barred by its failure to file them in a timely manner as required by that contract and that any quasi-contractual claims were barred because of the express written contract between the parties. Respondent responded with a Second Amended Complaint on September 11, 1997, arguing that the County had waived that defense by its conduct. On September 17, 1997, respondent filed an untimely Answer to petitioner's Motion to Dismiss, which attached the Affidavit of Donald Dashiell. On October 6, 1997, petitioner filed a Second Motion to Dismiss or, in the alternative, for Summary Judgment and on January 26, 1998, the Circuit Court entered judgment in favor of the County and granted Greenhorne's Motion to Dismiss for failure to state a claim upon which relief could be granted. As part of this ruling, the trial court ruled that the Affidavit of Donald Dashiell was defective for want of a verification on personal knowledge. On February 3, 1998, respondent resubmitted the Affidavit of Donald Dashiell replacing the words, "according to my best knowledge, information and belief" with "upon personal knowledge." Respondent's Motion for Reconsideration was denied on February 25, 1998.

Respondent appealed to the Court of Special Appeals.¹ In an unreported opinion, the intermediate appellate court affirmed the circuit court's decision as to the contract claims, holding that respondent's failure to comply with the Dashiell Contract's claim provisions barred its claims for breach of contract. That court also affirmed the circuit court's decision that respondent's quasi-contractual claim for quantum meruit was barred because there was an express contract between the parties. Neither of these two issues were the subject of a Petition for Writ of Certiorari. Accordingly, they are not before us.

The Court of Special Appeals, however, did reverse the circuit court's decision to grant summary judgment on Dashiell's quasi-contractual claim for unjust enrichment.² Additionally, the Court of Special Appeals disagreed with the trial court's finding that the defective Affidavit was fatal to respondent's claims. The County, seeking review of these last two holdings, presents the following questions to this Court:

I. Does the express, written contract between the County and [respondent] bar [respondent]'s quasi-contractual claim for unjust enrichment?

II. Was [respondent]'s claim for unjust enrichment properly dismissed because the Affidavit of Donald Dashiell in opposition to the County's Motion for Summary Judgment was inadequate as a matter of law?

I. Facts

In November 1989, as a first step in the process of renovating and adding to the County's correctional facility, petitioner entered into a Standard Form of Agreement Between Owner and Architect with Greenhorne for improvements to the Caroline County Detention Center (Greenhorne Contract). Respondent was not a party to this agreement. Pursuant to it, Greenhorne, an architectural firm, was responsible for designing the renovation and for providing supervision and monitoring services during the actual construction of the building addition. The project consisted of a 7,000 to 7,700 square foot, three-story addition to the existing Caroline County Detention Center located in Denton, Maryland, and a 3,700 to 4,200 square foot renovation of the original facility.

On February 22, 1994, the County entered into the Dashiell Contract with respondent for construction of the proposed renovation. For a total sum of $3,075,383.00, respondent agreed to furnish all labor, equipment, materials, and services, and perform all of the work necessary to renovate and expand the detention center by a date no later than 425 calendar days after the date of commencement. Section 3.2 of the Dashiell Contract specifically provides that liquidated damages of $500 per calendar day would be assessed if Dashiell failed to complete the project within the 425 calendar-day period.

Section 9.1.7 of the Dashiell Contract allowed for the incorporation of additional documents intended to form part of the contract documents. The parties agreed to include American Institute of Architects, General Conditions of the Contract for Construction, Document A201 (1987), which contains the provisions of the contract that are the subject of this appeal. The relevant provisions are as follows:

4.3.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. Claims must be made by written notice. The responsibility to substantiate Claims shall rest with the party making the Claim.

....

4.3.3 Time Limits on Claims. Claims by either party must be made within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims must be made by written notice. An additional Claim made after the initial Claim has been implemented by Change Order will not be considered unless submitted in a timely manner.

....

4.3.7 Claims for Additional Costs. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 10.3. If the Contractor believes additional cost is involved for reasons including but not limited to (1) a written interpretation from the Architect, (2) an order by the Owner to stop the Work where the Contractor was not at fault, (3) a written order for a minor change in the Work issued by the Architect, (4) failure of payment by the Owner, (5) termination of the Contract by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim shall be filed in accordance with the procedure established herein.

4.3.8 Claims for Additional Time.

4.3.8.1 If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as provided herein shall be given. The Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay only one Claim is necessary.

4.3.8.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time and could not have been reasonably anticipated, and that weather conditions had an adverse effect on the scheduled construction.

....

13.4.2 No action or failure to act by the Owner, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing.

On March 22, 1994, respondent received a Notice to Proceed from the County authorizing it to begin work on the project immediately and requiring it to complete all work by May 22, 1995.³ Almost immediately thereafter, respondent began to encounter construction delays for which it requested an extension. By letter dated November 15, 1994, a sixty-day extension of time was granted respondent. The extension was implemented through Contract Change Order No. 24, which was accepted by respondent on November 22, 1994, thereby extending the completion date from May 22, 1995 to July 21, 1995. No further completion date extensions were granted. Ultimately, construction of the project was not completed by the required date of July 21, 1995.

There were a series of preliminary allegations by respondent that a claim for an extension of time due to delays might exist. By letter dated February 23, 1995, Steven P. Dashiell, respondent's executive vice-president, informed Greenhorne that respondent "[was] currently working to develop a claim for lost time due to weather." By letter dated February 16, 1996, Stephen P. Dashiell again contacted Greenhorne stating that "the purpose of this letter is to tender formal notice that J. Roland Dashiell & Sons, Inc. will be preparing a claim against Caroline County as provided under the General Conditions of the Contract for Construction." (Emphasis added.) Dashiell indicated that said claim would be filed by April 1, 1996. Neither of these letters constituted a proper claim in compliance with section 4.3 of the General Conditions of the Contract for Construction....