AMERI CAN PROPER TY

CONSTRUCTI ON COMPANY, Plaintif f/Count er-De

fendant , v. SPR ENGER LANG F OUNDA TI ON, et al. , Defendants/Counter-Plaintiffs
.

UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 09-01232 ( CKK)

MEMORAN DUM OP INION (Mar ch 9, 2011) This action involves a re latively straig htforwa

rd contra ct dispute about construc tion service s. Plainti ff/Counter- Def endant Ame rica

n Property

Construction Company

(“A PCC ”)
commence d suit ag ainst Defe ndants/Counter-Plaintiffs Paul Spreng er ( “Spreng er” ), Jane L ang (“L ang ”), a

nd the Spreng er L ang

Foundation (the “F oundation”) ( collectively , “De fenda nts”),
asser ting c laims for bre ach of

express and implied contrac t based upon De fenda nts’ alleg ed failure to remit full pay

ment for c onstruction service s provided by APCC. Through this ac tion, APCC s eeks to re cover

monetary damag es in the amount of $339,727.50, e x clusive of inter est, as
rec ompense for

service s provided. Prese ntly befor e the Court is the F oundation’s [36] Motion for Summary

J udg ment, wher ein the F oundation contends that it is not a party to, or otherwise 1 bound by , any

ag ree ment with APCC and is there fore entitled to judgment a s a matter of law. Ba sed upon the pa

rties’ submissions, the attachments ther eto, the re levant author ities, and the
rec ord as a

whole, the Court conc ludes that there rema ins a g enuine dispute a s to whether the

Spreng er a

nd L angdo not join in t he motion. 1Foundation is a party to the alleg ed agree ment or may otherwise be held liable in conne ction with APCC’s breac h of contra ct claims. Ther efor e, the Court shall DENYthe Founda tion’s [ 36] Motion for Summary

J udg ment. 2 I. BACKG ROUND APCC commenced this action ag ainst Defe ndants on J uly 2, 2009, asser

ting c laims for brea ch of e x press a

nd implied contrac t. SeeCompl., Docket No. [1] . Fr om APCC ’s per spective, this action is a “straig htforwa rd collec tion case.” Pl.’s Opp’n at 1. APCC alleg es that it was eng ag ed by

Def endants, includingthe Founda tion, to provide g ener al contra cting service s on an office building located at 1614 20th Street, N.W., Washington, D.C. 20009 (the “ Property”). Compl. ¶ 9. APC C contends that, despite satisfa ctorily perf orming the ag ree d-upon work, Def endants have fa iled to make full pay ment. Id. ¶¶ 10- 15. Acc ording ly , throug h the instant action, APCC seeks monetar y damag es in the amount of $339,727.50, e x clusive of inter est, as
rec ompense for

service s rende red. Id. ¶¶ 14, 18. The pre sent motion is l imited to the narrow que stion of whether the Founda

tion is a party to, or otherwise bound by , the alleg ed agree ment with APCC . The F oundation is a trust with a stated mission of supporting the a rts, educa tion, and the environme nt. Def.’ s Stm t. ¶ 3; Pl.’s

Whil e the Court re nders its dec ision today on the re cord a s a whole, its consider ation 2 has foc used on the followingdocuments, listed in chronolog ical orde r of their filing: Mem. of

P. & A . in Supp. of Mot. for Summ. J . by the Spreng er L ang

Foundation (“De f.’s Mem.” ), Doc ket No. [36] ; Stm t. of Mater ial Fa cts Not in Dispute (“D ef.’ s Stm t.”), Doc ket No. [36] ; Aff. of J ane L ang(“L angDec l.”), Doc ket No. [36-1]; Dep. of J ane L ang(“L angDep.” ), Doc ket No. [36-3]; Mem. in Opp’n to the Spreng er L angFoundation’s Mot. for Summ. J . (“Pl.’s Opp’n” ), Doc ket No. [39] ; Pl.’s Opp’n at 2-4 (“ Pl.’s St mt.”); Dec l. of Allan Sherman ( “Sherma n Dec l.”), Doc ket No. [39-2] . As of the date of this Memorandum Opinion, the public doc ket re flec ts that the Foundation has not filed a re ply in support of the pre sent motion, and theref ore the repr esentations offere d by APCC i n its opposit ion stand uncontradic ted.

2Stmt . ¶ 3. While never dir ectly addre ssed by

either pa rty , it appear s from the re cord that Spreng er a

nd L angare the Founda

tion’s sole trustees. L angDep. at 15. I t is also evident from the re cord that the Foundation held no formal owne rship interest in the Proper ty in the time period re levant to this action, and that the Prope rty was instead jointly

held by Spreng er a

nd L ang as individuals. Def

.’s Stmt. ¶¶ 2, 4; Pl .’s Stmt. ¶¶ 2, 4. At the same time, the re cord sug g ests 3 that the Founda

tion was an oc cupant of

the Property

duringthe time period re levant to this action. Pl.’s Stmt . Ex . D at SL 0000997, SL 0001016, SL 0001068, SL 0001360, SL 0001406; Sherman De cl. ¶¶ 8, 16. I t is undisput ed that the pa rties neve r ente red into a f ormal, written a g ree ment g overning the terms and c onditions of the work to be pe rfor med by APCC, Def.’s Stmt. ¶ 5; P l.’s Stmt . ¶ 5, something that undeniably complicates de termining whether an agree ment exis ted and, if so, prec isely who was pa

rty to that ag ree ment. That said, the pa rties did at one point contemplate formalizing their

relationship i n a wr itten document. On or a bout J uly 31, 2006, prior to the
commence ment of any

work at the Property , Allan Sherman ( “Sherma n”), the President and FoundingPrincipal of APCC and the Project Mana g er f or the c onstruction work pe rfor med by APCC, s ent a dr aft a g ree ment to L angfor he r re view. De f.’s Stmt. Ex . C at APC-00153. The
Whil e APCC purports to deny this contention, its denial is half-hea rted a nd, more 3 importantly , unsupported by competent e vidence . Indeed, A PCC conce des that it “lac ks sufficie nt information to admit or deny [t he] alleg ation,” but then proc eeds to off er its unsupported and wholly

conclusory

rejoinder that “it alway s understood the Proper ty to be owned by all Def endants.” Pl.’s St mt. ¶ 2. Whi le that re joinder may

be re levant in asc erta ining APCC’s st ate of

mind at the time of contra cting , such conc lusory asser tions, offere d without any fac tual basis, cannot c reate a g enuine dispute a s to the actual owner ship of the Property . In any event, the de ed for

the Property

has bee n introduced into the re cord, which identifies Spreng er and L angas the sole owne rs and make s no mention whatsoever of the F oundation. Def

.’s Stmt. Ex . B. A ccor dingly , for pur poses of the pr esent motion, it cannot g enuinely be disputed that the Foundation held no formal owne rship interest in the Proper ty . 3draf

t ag ree ment, which wa s based on a form pre pare d by

the Amer ican Institut e of A rchitec ts, expressly provided that the pa

rties would be APCC, as the “Contra ctor,” and Spreng er a nd L ang , as the “ Owner [s] ” of the Property
. Id. at APC-00156. No mention was made of the F oundation. Id. Howeve r, APCC contends, and the F oundation never disputes, that subsequent contra ct neg otiations ensued, with the par ties ultim ately

ag ree ing to pr ocee d with the construction proje ct in acc ordanc e with an a g ree d-upon budg et. Def .’s Stmt. ¶ 5; S herma

n Dec l. ¶ 7. In the end, the proposed a g ree ment never proce eded be yond draf

t form. Def

.’s Stmt. ¶ 5 & Ex. D at 20; Pl .’s 4 Stmt . ¶ 5. Despite the a

bsence of a f

ormal contra ct g overning the par ties’ re lationship, APC C perf ormed c onstruction work a t the Property

and, duringthe cour se of its work, submitted thirteen a pplications for pa

y ment. All thirteen applications, submi tted more or le ss on a monthly basis over the period of a pproxi mately

one y ear and seve n months ex tending from De cembe r 31, 2006 throug h August 6, 2008, were addre ssed to the Founda tion and consistently

identified the Foundation as the “Owner” of the Proper ty . Pl.’s St mt. Ex . G at APC-00144 (De c. 31, 2006 Appl.), APC-00125 (Jan. 31, 2007 Appl.), APC-00120 (Fe b. 28, 2007 Appl.), APC-00110 (Mar
. 31, 2007 Appl.), APC-00101 (May31, 2007 Appl.), APC-00091 (June 30, 2007 Appl.), APC00076 (Aug . 31, 2007 Appl.), APC-00066 (Sept. 30, 2007 Appl.), APC-00059 (Oc t. 31, 2007 Appl.), APC-00051 (F eb. 18, 2008 Appl.), A PC-00042 (Apr. 28, 2008 Appl.), A PC-00035 (J une 2, 2008 Appl.), APC-00307 (Aug . 6, 2008 Appl.). Sherman de clar es, without contradic tion, that the Foundation never sug g ested that the a pplications for pa

y ment should be direc ted elsewhere
The only

explanation ever pr ovided for this deve lopment is S herma n’s ra ther 4 unillumi nating decla

ration that L ang“fa iled/refuse d to sign.” Sherman De cl. ¶ 7. 4nor cor

rec ted the cha

rac terization that it was the “Owne r” of the Property . Sherman De cl. ¶ 17. Moreove r, APCC has introduced into the re cord a larg e swath of corr espondenc e and othe r documents sug g esting that the Founda tion and its employ ees w ere actively involved in the construction proje ct over

an extended per iod of time. Pl.’s S tmt. Ex . D. Relying e x clusively

on L ang ’s dec laration, the Foundation conte nds that it never made any pay ments to APCC for the w ork per formed a nd that, instead, pay

ment orig inated dire ctly from one of

three parties—Spre ng er, L ang , or JL PS, L L C, a non-par ty limit ed liability

company of which Spre ng er a

nd L angare the only

members. De f.’s Stmt. ¶¶ 6-7 (c iting L angDec l. ¶ 2). Howeve r, APCC has included with its opposit ion a che ck issued by the Founda

tion to APC C in the amount of $2,777.50, a ppare ntly as a “ 50% downpa

y ment per c ontrac t on . . . shelves.” Pl.’s Stmt . Ex . B. While there appea r to be no other

chec ks issued directly

by the Founda

tion to APCC, S herma

n decla res, with minimal expl anation but without contradic tion, that L ang expressly repr esente d to him that the Foundation was pa ying f or at lea st a portion of the
renovations. S herma

n Dec l. ¶¶ 13, 15.

II. LEGAL STANDARD Summary judgme nt is appropriate wher e “the movant shows that there is no ge nuine dispute as to any

materia l fac t and [that it ] . . . i s entitled to judgment a s a matter of law.” F ed. R. Civ. P . 56(a) . The mer e existence of some fac tual dispute is insufficient on its own to bar summary judgme nt; the dispute must pertain to a “mate rial” f act, a nd there fore “[o] nly

disputes over f acts that mig ht affe ct the outcome of the suit under the g overninglaw will proper ly prec lude the entr

y of summary

judgme nt.” Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 255 (1986). Nor

may summary judgme nt be avoided ba sed on just any disag ree ment as to the
5rele vant fa cts; the dispute must be “g enuine,” meaningthat there must be sufficient a dmissibl e

evidenc e for

a re asonable trier of

fac t to find for the non-mova nt. Id. In order to establish that a fa ct is or ca nnot be g enuinely

disputed, a par

ty must (a) c ite to specific parts of the rec ord—includingdeposition testimony , documentar y evidenc e, af

fidavits or decla rations, or other

competent e vidence —in support of its posit ion, or (b) de monstrate that the materia ls relied upon by

the opposing party

do not actually

establish the abse nce or

prese nce of

a g enuine dispute. F ed. R. Civ. P. 56(c)(1). Conc lusory asser tions offere d without any fac tual basis in the rec ord ca

nnot cre ate a

g enuine dispute suff

icient to survive summary judgme nt. Ass’n of Flight Attendants-CW A v. U.S. D ep’t of Transp. , 564 F.3d 462, 465- 66 (D.C. Cir. 2009). Moreove r, whe re “ a par

ty fails to proper ly

support an asse rtion of fa ct or fa ils to properly addre ss another party ’s asser

tion of fac t,” the district cour t may “conside r the fa ct undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When fac ed with a motion for summary judgme nt, the district court may not make
cre dibilit y

deter minations or weig h the evidenc e; instead, the e vidence must be analy zed in the light most favor able to the non- movant, with all justi fiable infe renc es dra wn in its favor. Liberty Lobby , 477 U.S. at 255. I f mater ial fac ts are g enuinely in dispute, or undisputed fac ts are susceptible to diverg ent yet justifiable infer ence s, summary judgme nt is inappropriate. Moore v
. Hartman , 571 F.3d 62, 66 ( D.C. Cir. 2009). In the end, the district c ourt’s task is to determine “whe ther the e vidence prese nts a sufficie nt disag ree ment to require submissi on to a jury or whether it is so one-sided that one par ty must prevail as a

matter of la

w.” Liberty Lobby , 477 U.S. at 251-52. In this reg ard, the non-movant must “do more tha n simply show that there is some metaphy sical doubt as to the material fac ts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith
6Radio Corp. , 475 U.S. 574, 586 (1986); “[i] f the e vidence is merely colora ble, or is not sufficie ntly

probative, summar

y judgme nt may

be g rante d,” Liberty Lobby , 477 U.S. at 249-50 (interna l citations omit ted). III. DISCUSS ION Under District of Columbia law, the par ty asser ting the e x istence of

a contr act, r eg ardle ss 5 of its form, bear s the burden of provingthe exist ence of an e nforc eable ag ree ment. Kramer 6 Assocs., Inc . v. Ik

am, Ltd. , 888 A.2d 247, 251 (D.C. 2005) ( citing Jack Bake r, Inc. v . Office Space D ev. Corp. , 664 A.2d 1236, 1238 (D.C. 1995)) . This burden e x tends to the issue of contra ct formation, Novec on Ltd. v. Bulgarian-Am. Enter. Fund, 190 F.3d 556, 564 ( D.C. Cir. 1999), cert. de nied , 529 U.S. 1037 (2000), mea ning that the proponent of the ag ree ment must establish that there has bee n assent to all mater ial terms on both sides of the a g ree ment, Eke dahl v. COREStaff, Inc. , 183 F.3d 855, 858 ( D.C. Cir. 1999). The instant motion turns on the fundame ntal and unobjec tionable principle that a contra ct ca nnot bind a non-par

ty

— i.e. , someone who ha s not assented to be bound to its terms. Equal Empl. Opportunity Comm’n v. W affle House, Inc

. , 534 U.S. 279, 294 (2002); see also Charlton v. Mond , 987 A.2d 436, 441 (D.C. 2010) (“Non-pa

rties owe no c ontrac tual duty to the contra cting parties.” ). In this case, the Foundation contends that a re asonable fac t finder c ould not find that it was a par ty to, or
Both pa rties assume that District of Columbi a law a

pplies to the claims at issue, and the 5 Court need not question the pa rties’ a ssumption. Himes v . Medstar-Ge orgetown Univ. Me d. Ctr. , __ F. Supp. 2d __, 2010 WL4879438, at *4 n.3 (D.D .C. Dec. 1, 2010)
. The Court obser

ves that the F oundation is mist aken in its argument that, g iven the 6 undisputed absenc e of a

formal, wr itten agree ment betwee n the par ties, APCC can only

rec over under a theory of implied contrac t. There is a broad c ateg ory of agree ments that are unwritten but never theless express—namely , oral a g ree ments. 7otherwise bound by , any agree ment with APCC . The F oundation’s ar g ument rests on three bases, none of which w arr ants judg ment as a ma tter of law

in the Founda

tion’s favor. T he Court addre sses ea ch basis in turn. First, the F oundation argues most force fully that it is entit led to judgme nt as a matter of law bec ause it holds no formal owne rship interest in the Proper ty . Def .’s Mem. at 3-4. T he argument is entirely

misplaced. While it may be re asonable to assume that an owne r of r eal proper ty is more likely

than a non- owner

to enter into an a g ree ment conce rningconstruction service s to be provided with re spect to that prope rty , owner ship alone is hardly dispositi ve. Simpl y put, there is no re ason why a non-owner oc cupant of a g iven prope rty , such as the Foundation, could not enter into a bindingag ree ment conce rningconstruction ser vices to be provided with re spect to that prope rty . Acc ording ly , the Founda tion is not entitled to summary judgme nt on this basis. Second, af

fordingthe Foundation’s paper s a g ener ous construction, the F oundation argues that L angwas not re prese nting its interests whe n eng ag ing or dealingwith APCC . Unlike the Foundation’s previous ar g ument, this one at least re sts on more solid lega l footing; if no one
was re prese nting the F oundation in the course of contra ct neg otiations, APC C’s claims, at least those rooted in bre ach of

an express or implied-in-f act c ontrac t (as opposed to qua si-contra ct), would be on shaky

g round. Howe ver, it is entirely non-controve rsial to say

that trustees, a s ag ents, may

wield ac tual or appa

rent a uthority to bind the trust, as the principal, to enf orce able ag ree ments. See Makins v. D istrict of Columbia , 277 F.3d 544, 548 ( D.C. Cir. 2002) (“A ctual authority . . . means that the a g ent has the pow er to a ffe ct the leg al re lations of the principa l by acts done in acc ordanc e with the princ ipal’s manife stations of consent to him.”) (inter nal
8quotation marks omitted); Dorsky H odgson & Partners, Inc. v . Nat’l Council of Sr. Citi zens , 766 A.2d 54, 55 (D.C. 2001) ( “Appa rent a uthority arises when a pr incipal place s an ag ent in a position which causes a

third person to re asonably believe the principal ha d consente d to the exercise of

authority the ag ent purports to hold.”) ( internal quotation marks omitted). The problem is that the re cord in this case has bee n so poorly develope d by

the par ties that the Court cannot sa y , one wa y or the other , whether

anyone ac tually

was, or r easona

bly could have been
seen a s, repr esentingthe Foundation at the time the contra ct was a lleg ed to have been f ormed. In support of its positi on, the Founda tion relies primarily

on L ang ’s dec lara

tion, which provides, in conc lusory

fashion, that “[a]t no tim e did [she] neg otiate, dea l with, or pay [AP CC] on behalf of [the Foundation].” L angDec l. ¶ 5. APCC, i n turn, counter s with its own conclusory denial of the alleg ation. Sherman De cl. ¶¶ 6, 10. N either pa rty provides any

meaning ful fac tual support for their

respe ctive positions, and their conc lusory asser tions, provided without any
concr ete ba sis in the recor d, offe r nothing in the way of re solving the issue. Me anwhile, the
rec ord shows the following : Spreng er a nd L ang are trustees of the Foundation; L angwas involved in the neg otiations in question; both Spreng er a nd L angmade pa

y ments to APCC ; the Foundation occupies pa

rt of the Prope rty

at which the se rvice s in question were perf ormed; a broad swath of corr espondenc e indicate s that Foundation employ ees w ere actively involved in the construc tion project; the thirteen a pplications for pa

y ment submitt ed by

APCC were a ll addre ssed to the Foundation; and the Foundation made at lea st one direc t pay ment in connec tion with the service s provided. Counterba lance d ag ainst these conside rations ar e L ang ’s asser tion that she wa s not repre senting the Foundation, which is entirely conclusory , the fa ct that the Foundation held no formal owne rship interest in the Proper ty , which as pr eviously

explained is
9not nece ssarily inconsistent with a finding that the Founda tion is a party

to the ag ree ment, and the fa ct that the dra ft ag ree ment did not ex pressly identify the Founda

tion as a prospe ctive par

ty . On this final point, while the fac t that the draf t ag ree ment did not identify the Founda

tion as a prospec tive party

may be some e vidence that the par ties, in their subsequent neg otiations, did not intend for the F oundation to be bound by the ag ree ment ultimately rea ched, it is not sufficient to
war rant summary

judgme nt in the Foundation’s f avor in the f

ace of all the c ounterva iling evidenc e in the re cord. This is espe cially true a fter taking into conside ration that all thirteen applications for

pay ment, prepa

red later in time and ove r the c ourse of near ly two y ear s, were all direc ted to the Foundation, sugg esting that something ma y have c hang ed betwe en Jul y 31, 2006, around the time the draf

t agree ment was pre pare d, and De cembe r 31, 2006, whe n the first application for

pay ment was submitted. Ba sed on this rec ord, the c onclusion to be rea ched is 7 simply inesca pable: ther e is a g enuine dispute a s to whether the Foundation is a party to, or bound by , the alleg ed agree ment. Third, and f

inally , the Foundation avers that it has ne ither ac cepte d nor bene fitted from the servic es provided by

APCC, Def.’s Mem. at 3- 4, an ar g ument that appea rs to be dire cted more towa

rds APCC’s claims to the ex tent they sound in quasi-contra ct. I t is well-established that, under the rubric of quantum meruit and unjust enrichme nt, “one who or ders wor k done impliedly promises to pay

for it,” Chase v. Gilbert , 499 A.2d 1203, 1208 n.4 (D.C. 1985), a nd
Whil e not altog ether

clea r fr om the parties’ paper s, APCC appea rs to contend only

that 7 the thirteen a

pplications for pa

y ment are evidenc e that the F oundation was a n orig inal party

to the ag ree ment ultimately

rea ched, a

nd not that they

are indications that the Foundation ratified the ag ree ment later in time. See Lewis v. W ashington Metro. Area Transit Auth. , 463 A.2d 666, 672 (D.C. 1983) (“ The princ ipal may ratify the ac t expressly

or impliedly , by

conduct inconsistent with any

other hy pothesis, and once he has done so he is bound by the ag ent’s ac t nunc pro tunc .”) ( internal c itations omi tted). 10“[t] he par

ty who [unjust ly ] retains the bene fit is obliged to make restitution,” Kramer Assocs. , 888 A.2d at 254. Howe ver, be cause g enuine disputes exist as to whether APCC’s service s were eng ag ed, in all, in part, or not at all on the Foundation’s behalf, a nd whether

the Founda

tion, as
an occ upant of the building , has bene fitted from the se rvice s, the Foundation is not entitled to summary judgme nt on this basis either. IV. CONCLUSION The Court has c onsidered the rema ining a rguments tendere d by

the par ties and has conclude d that they

are without merit. There fore , and for the re asons set for

th above, the Court shall DENY the F oundation’s [36] Motion for Summary J udg ment. An appr opriate O rder
acc ompanies this Memorandum Opinion.

Date: Marc h 9, 2011 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

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