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 8, 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 (collectively , “De fenda nts”), asse rting claims for brea ch of e x press a

nd implied contrac t based upon De fenda nts’ alleg ed fa ilure to remit pay ment for c onstruction service s provided by APCC. Through this ac tion, APC C seeks to rec over monetary damag es in the amount of $339,727.50, e x clusive of inter est, as re compense for service s provided. Prese ntly befor e the Court is Spreng er a nd L ang ’s [37] Motion for Partial Summary J udg ment, which is direc ted towar ds challeng ing a discrete component of A PCC ’s 1 brea ch of c ontrac t claims—namely , a so-c alled “c ontinge ncy” line item in the amount of $85,830. Contending that there w as no “me eting of the minds” as to the “ conting ency ” line item, Spreng er a

nd L angasser

t that summary

judgme nt should be entere d in their favor on this li mited

The Spreng er L angFoundation does not join i n the motion. 1issue. Ba sed upon the pa rties’ submissions, the attachments ther eto, the re levant author ities, and the re cord a s a whole, the Court concludes that there r emains a g enuine dispute a s to the meaning that the par

ties’ attac hed to the “c ontinge ncy” line item and, a ccor dingly , Spreng er a nd L ang ’s [37] Motion for Partial Summary J udg ment shall be DENI ED. 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. As set for th in the Compl aint, APCC allege s that it was eng ag ed by Def endants 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”). APCC contends that, despite satisfac torily perf orming the work a s ag ree d, Def endants have failed to make full pay

ment for se rvice s rende red. See ge nerally Compl. Through the instant action, APCC seeks monetar y damag es in the amount of $339,727.50, e x clusive of inter est, a sum that acc ounts for a so- called “ conting ency ” line item in the amount of $85,830. The nature of the “ conting ency” line item, and whe ther APCC may claim an e ntitlement thereto, is the subject of the pr esent Motion for Par tial Summ ary

J udg ment. 3

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 Partial Summ. J . by J ane L angand Paul Spreng er ( “Indiv. Defs.’ Mem.”), D ocket No. [37]; S tmt. of Material F acts Not in Dispute (“ Indiv. Defs.’ Stmt .”), D ocket No. [37] ; Aff. of

J ane L ang(“L angDec l.”), Doc ket No. [37-1]; Mem. in Opp’n to the Mot. for Partial Summ. J . of Jane L ang and Paul Spreng er ( “Pl.’s Opp’n” ), Doc ket No. [40] ; Pl.’s Opp’n at 2-7 (“ Pl.’s St mt.”); Dec l. of Allan Sherman ( “Sherma n Dec l.”), Doc ket No. [40-2]; Def s.’ Reply to Pl.’s Opp’n to Mot. for Partial Summ. J . (“I ndiv. Defs.’ Reply ”), D ocket No. [44]. Whil e the pa

rties sharply

dispute APCC ’s ultimate entitlement to the “conting ency” 3 amount, there is surprisingly littl e disag ree ment as to the re levant fa cts. Unless otherw ise

2I 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. I ndiv. Defs.’ Stmt . ¶ 2; Pl.’s

4 Stmt . ¶ 2. Reg ardle ss, APCC perf ormed c onstruction work a t the Property

over a n extended period of time a

nd, prior to commenc ing that work, pre pare d a wr itten estimate as to the anticipated c osts and expenses. I ndiv. Defs.’ Stmt . ¶ 5; Pl.’s St mt. ¶ 5. The “initial budg eting sprea dsheet,” as it is chara cter ized by APCC, i dentifies the bid-date as Nove mber 2, 2006 a nd place s the total estimated cost for the contemplate d construction ser vices at $2,472,548. Pl.’s Stmt . Ex . F at APC-00030. Following three pag es of itemized expenditures, the written e stimate 5 divides the total estimated cost into eig ht categ ories: Desc ription Estim ate L abor $440,900 Materia l $173,422

indicated, the na

rra tive that follows rests on undisputed fa cts or those fa cts as to which ther e ca n be no g enuine dispute, view ing the evidenc e in the lig ht most favorable to APCC as the nonmovant. Whil e APCC at one point cre ated a proposed c ontrac t, it never proc eede d beyond draf t 4 form. Indiv. Defs.’ Stmt . ¶ 2 & Ex . A; Pl.’s St mt. ¶ 2. The dra ft ag ree ment sheds no light on the discrete issue prese ntly

befor e the Court. Although the y

do not dispute either that APCC prepar ed a written estimate in 5 connec tion with the contemplated wor k or that the wr itten estimate included the spe cific “conting ency” line item at issue, Indiv. Defs.’ Stmt . ¶ 5, Spreng er a nd L angneg lected to include the written e stimate as an e x hibit to t heir moving paper s. APCC , howeve r, included w ith its opposition papers what it contends is the “initial budge ting spre adshee t.” Pl.’s Stm t. ¶ 3 & Ex . F. I n reply , Spreng er a

nd L angnever

sug g est that the prof

fer ed spre adshee t is any

thing other

than the written e stimate spoken of by both parties, see ge nerally I ndiv. Defs.’ Reply , and the Court assumes this to be the ca se for purposes of the prese nt motion. I n any event, view ing the evidenc e in the lig ht most favorable to APCC as the non-mova nt, it is justifiable to infer that the exhibi t is what it is claimed to be—namely , the written e stimate exchang ed betwe en the pa rties prior to the commenc ement of the contemplated se rvice s. 3Subcontrac t $1,386,715 Equipment $26,950 Other $178,668 Over head $88,266 Profit $91,797 Contingenc y $85,830 Total $2,472,548 Pl.’s St mt. Ex . F at APC-00030. As set forth in the written e stimate, the final thre e cate g ories—over

head, pr ofit, and conting ency —are segreg ated f

rom the re maining f

ive. Id. The “conting ency” line item, estimated at $85,830, is the sole focus of the prese nt motion

. 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. I ndiv. Defs.’ Stmt . ¶ 3; Pl.’s St mt. ¶ 3. All thirteen applications, submitted more or less 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, consistently identified the “ schedule d value” for the “ conting ency” line item as $85,830. Indiv. Defs.’ Stmt . ¶ 3; Pl.’s S tmt. ¶ 3 & Ex. G at APC-00145 (Dec . 31, 2006 Appl.), APC-00126 (Jan. 31, 2007 Appl.), APC-00121 (F eb. 28, 2007 Appl.), A PC-00111 (Mar. 31, 2007 Appl.), A PC-00102 (May 31, 2007 Appl.), APC-00092 (June 30, 2007 Appl.), APC-00077 (Aug . 31, 2007 Appl.), APC00067 (Sept. 30, 2007 Appl.), APC-00060 (Oc t. 31, 2007 Appl.), APC-00052 (Fe b. 18, 2008 Appl.), APC-00043 (Apr . 28, 2008 Appl.), APC-00036 (June 2, 2008 Appl.), APC-00308 (Aug

. 6, 2008 Appl.). While the “conting ency” line item was c onsistently identified over

time, it is undisputed that APCC did not actually seek pa y ment for the “ conting ency” amount until it
4submitt ed its final two applications for pay ment: an application for pay ment dated June 2, 2008 soug ht pay

ment for $40,000 of

the “c ontinge ncy ;” and a n application for

pay ment dated Aug

ust 6, 2008 soug ht pay

ment for the r emaining$45,830. I ndiv. Defs.’ Stmt . ¶ 3; Pl.’s St mt. ¶¶ 3, 10 & E x . G at APC-00036 (June 2, 2008 Appl.), APC-00308 (Aug . 6, 2008 Appl.). Spreng er a nd L angnever

paid the desig nated a

mounts. I ndiv. Defs.’ Stmt . ¶ 10; Pl.’s St mt. ¶ 10. 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 rele 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. I n 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—including deposition 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).

5Moreove 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). I n 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 mater ial fac ts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 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

an enf orce able 6 contra ct bea

rs the burde n of provingthat there has bee n a “me eting of the minds,” or mutual assent, as to a ll material terms. Eke dahl v. COREStaff, Inc. , 183 F.3d 855, 858 ( D.C. Cir. 1999). Both pa rties assume that District of Columbi a law a

pplies to the claims at issue, and the 6 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)

. 6Wit hout a “mee ting of the minds” as to all mater ial terms, there can be no enfor cea ble contra ct. Bailey v . Fed. Nat’l Mortg. Ass’n , 209 F.3d 740, 746 ( D.C. Cir. 2000) (citing Jack Bake r, Inc. v

. Office SpaceDev . Corp. , 664 A.2d 1236, 1238 (D.C. 1995)) . Whil e mutual assent is “most clea rly evidenc ed by

the terms of a

signe d written ag ree ment,” a sig ned agree ment is not indispensable, Kramer Assocs., Inc . v. Ik am, Ltd. , 888 A.2d 247, 252 (D.C. 2005) ( internal quotation marks omitted); proof of a meetingof the minds may also be found “ in the parties’ actions at the time of c ontrac t formation,” Eke dahl , 183 F.3d at 858. I ndeed, “ [w] here an ambig uity is present, the intent a

nd understandingof the pa rties is of cr itical importance ,” which entails “a probing inquiry

into the understandingof ea ch par ty to the alleg ed contr act r eg arding its meaning and ef

fec t.” Howard Univ. v. Lacy , 828 A.2d 733, 737 (D.C. 2003). O ften this require s resort to evide nce c oncer ning the circ umstances surr ounding the makingof the c ontrac t, including pr eliminary

neg otiations and discussions, customary prac tices of whic h either pa rty knows or has r eason to know, a nd the cour se of c onduct of the pa rties under

the contra ct. In re Bailey , 883 A.2d 106, 118 (D.C. 2005). In the instant case , Spreng er a nd L angmaintain that there was no “ meetingof the minds” as to the “ conting ency” line item. The Court c oncludes that g enuine f actua l disputes preclude a def initive finding one way

or the other

based on the skeletal

rec ord cr eate d by

the par ties and shall there fore DENY Spre ng er a nd L ang ’s [37] Motion for Partial Summary

J udg ment. Be fore rea chingthe conteste d issues, it is i mportant to emphasize what is not g enuinely in dispute. Although ne ver f ully acknow ledg ed in the par ties’ brief ing, both sides c lear ly

share d an understandingas to the under ly ing purpose of the “ conting ency” line item. That is, both parties understood that the $85,830 a mount, or at least some portion ther eof, w ould be used to cove r

7unanticipated c osts incurred by APCC i n the cour se of pe rfor ming the se rvice s for whic h it was eng ag ed. Indiv. Defs.’ Stmt . ¶ 5; Pl.’s St mt. ¶ 7. Allan Sherman ( “Sherma n”), the President and FoundingPrincipal of APCC and the Project Mana g er f or the c onstruction work at the Property , submits hi s view that a “ conting ency” is an “ industry standard” device desig ned to cove r unanticipated c osts, such as cha ng es and modifications that arise duringthe cour se of construction. Sherma

n Dec l. ¶¶ 21-22, 30. I

n this way , the “c ontinge ncy” amount ser ves as a cushion to absorb una

nticipated costs, and a llows the parties to re ly on the pre deter

mined and budg eted c ontinge ncy

amount in lieu of issuing updated invoices or “ chang e orde rs.” Id. ¶¶ 22- 23. Spreng er a

nd L ang ’s purporte d understanding of the “ conting ency” amount— i.e. , that it was

a mea ns to acc ount for “une x pecte d expenses that might occ ur duringthe cour se of the pr oject,” I ndiv. Defs.’ Stmt . ¶ 5 (c iting De p. of Jane L ang(“L angDep.” ), Doc ket No. [37-7], at 155- 57)—is not materially

differ ent. In short, ever

y one under stood the function of the “ conting ency” line item. What is l ess clea r is whether

the par ties intended to requir e APCC to document and 7 justify any unanticipated c osts and impute them to the $85,830 amount, and whethe r the pa rties intended the unuse d balanc e, if a ny , to inure to the bene fit of APCC or, alternatively , to Spreng er and L ang . Unfortunately , the re cord c reated by the par ties sheds littl e lig ht on either que stion. There is no doubt that, in arg uing the merits of the pre sent motion, the parties have put

For this reason, it is somewhat per plexi ng that Spreng er a

nd L angso forc efully

argue 7 that the “plain, c ommon-sense de finition” of the ter m “conting ency

” re quires summary

judgme nt in their favor . I ndiv. Defs.’ Reply at 2. The a

rgument misses the mark for the simple rea son that nobody disputes that the expenses themselves we re “ conting ent,” in that they wer e unce rtain to be incur red; but that does not answ er the question of whethe r the pa rties intended APCC to justify and ac count for suc h expenses, in the event they wer e incur

red, or the question of which party was e ntitled to the balance in the further conting ency

that the full $85,830 was not deple ted in cover ing una

nticipated costs. 8forwa

rd conf licting inter

pretations of the “conting ency” amount and how it would be used during the cour se of the pa

rties’ re lationship. On the one hand, A PCC contends that the “ conting ency” amount operates more or

less like a pre set discre tionary fund desig ned to af

ford the c ontrac tor with some flexibi lity

in absorbingthe unanticipate d but inevitable costs enc ountere d in the

course of any

g iven construc tion project without cutting into its ag ree d-upon prof it. Sherman Dec l. ¶¶ 23-24. Consistent with this vi ew, APCC rea dily conce des that it has neve r attempted to itemiz e the make up of the $85,830 “ conting ency ” amount, explaining that “ conting ency by definition . . . does not cover any specific item.” Id. ¶ 24. View ed fr om a slightly differ ent perspe ctive, APCC construes the “ conting ency” line item as akin to a form of pr ofit, with the principal diff

ere nce be ing that there is a pr esumption that monies allocated f or “c ontinge ncies” will be used to cove r unexpected c osts, but that any unused bala

nce ne verthe less inures to the contra ctor’s be nefit. On the othe r hand, while they do not dispute that the “conting ency” line item was desig ned to cove r unexpected e x penses or that those expenses wer e initially projec ted to be $85,830, Spreng er a nd L angnever

theless maintain that there was no a g ree ment to “pay any ‘conting ency ’ amount without rec eiving a full explanation of same at the time the ‘conting ency ’ or unfor esee n expense arose .” L angDec l. ¶ 4. In other wor ds, so far a s the Court can te ll, Spreng er a

nd L angasser

t that the “conting ency” amount would be se t aside as a projec tion of costs unfore seen at the time of the estimate, but that APCC would have to spec ifically acc ount for a nd deduct those c osts from the “c ontinge ncy” amount as the y arose , and that any

rema ining balanc e would inure to their bene fit. I ndiv. Defs.’ Reply at 2. 8
Whether APCC actually made a n eff ort to expl ain which e x penses we re be ing c overe d 8 by the “c ontinge ncy” amount is disputed. On the one ha nd, L ang aver s, with no further explanation, that APC C never ide ntified any particula r item that would be attributed to the 9Whil e neither interpre tation is facially

implausible, the problem is that there is virtually no evidenc e in the re cord a s to what the par ties’ under standing s actua lly wer e at the time of contra cting and whe ther those unde rstanding s were rea sonable. The se g aps in the re cord a re f atal for Spre ng er a

nd L ang ’s Motion for Partial Summary J udg ment beca

use the que stion of whether there has bee n a “me eting of the minds” must be appr oache d with an ey e towar ds the contra cting parties’ understandingof their a g ree ment “at the time the c ontrac t was made ,” Sun Secure d Fin. LLC v. ARCS Commerc ial Mortg. Co. L P , 730 F. Supp. 2d 132, 137 (D.D .C. 2010), and while the par ties’ subjective intent may sometimes be re levant in deter mining whe ther ther e has be en mutual assent to all materia l terms, the inquiry never theless turns on how a r easona ble per son in the position of the parties would ha ve under stood the agree ment, Akassy v . W illiam Penn Apartments Ltd. P’ship , 891 A.2d 291, 299 (D.C. 2006) ( internal quotation marks omitted). Rely ing e x clusively

on L ang ’s deposition testimony , Spreng er a nd L angcontend that “ it was [] L ang ’s under standing that the re fer ence [t o a “c ontinge ncy” in APCC’s written estimate] was to unexpected e x penses that mig ht occur during the cour se of the pr oject, and that any discussion of such cha

rg es would not occ ur until such time as such expenses we re inc urre d.” I ndiv. Defs.’ Stmt . ¶ 5 (c iting L ang Dep. a t 155-57). The cited testimony , howeve r, does not clea rly evidenc e L ang ’s under standing at the time APCC was eng ag ed to per form construc tion
“conting ency” amount. L angDec l. ¶ 3. On the other hand, Sherma

n maintains that he fr equently informed Spre ng er a

nd L angthat some unspecif ied universe of expenses, otherw ise unbilled, wer e beingcover ed by

the “c ontinge ncy” amount, and that APCC sometimes performed socalled “ chang e orde r” r equests fr ee of char g e as a

courte sy and in re liance on the exis tence of the ag ree d-upon “c ontinge ncy” amount. Sherma n Dec l. ¶ 27. Neither

party submits any

evidenc e in support of their positions bey ond these due ling a nd rathe r g ener alized declar ations. On this rec ord, the Court ca

nnot resolve the dispute, which, in any event, is larg ely

immaterial bec ause APCC has taken the position in thi s liti g ation that it was under no oblig ation to document or explain the ex penses c overe d by the “c ontinge ncy” amount.

10service s. I n fac t, it is entirely equivoca l: Q. L et me move on to this last number, the conting ency number, $85,000 [si c]. Why has that been deducte d from the contra ct? A. I — My rec ollection is not clea r on this, but I believe — there was an all o wanc e that — I rea lly can’ t answe r that clea rly rig ht now. I just — I just don’t reme mber. But there was an allowanc e t aken and — for conting encie s that was [si c] unexplained.

. . . . I n [AP CC’s] budg et, there was a conting en c y o r c o nti n g encie s

— I don’t reme mber how it was descr ibed — and that m y rec ollection is it was unexpl ained a nd — that portion of it. Q. Okay . Did y ou ever dispute the conting ency

amount . . . .? A. Well, a contingen cy at the beg inning in a budg et is just a conting ency . I t’s not something to dispute. Q. Did y ou ever ask for clar ification on the conting ency , on what it was [before the work star ted]?

. . . . A. Well, my understanding of a conting ency is just that it’s sor t of like a, y ou know, possible — to cover things that y ou don’t expect or that y ou don’t know about.

. . . . Q. Okay . Kind of like the unfor esee able? A. That’s my

understanding

. L angDep. at 155-57. Simpl y put, the testimony

relied upon by

Spreng er a

nd L angsheds no light on what L ang ’s under standing of the “ conting ency” line item was at the time of contra cting , apar t from the f act that she understood that it was intende d to cover unanticipated e x penses. The testimony offe rs nothing in the w ay of answe ring whether

the par ties intended to requir e APCC to specifica lly

document and justify

any unanticipated c osts and impute them to the $85,830 11amount, and whe ther the pa rties intended the unuse d balanc e, if a ny , to inure to the bene fit of APCC or, alternatively , to Spreng er a nd L ang . 9 Even a ssuming, arguendo , that there was c ompetent evidenc e in the re cord e stablishing with some meaning ful measur e of c larity what L ang ’s subjective unde rstandingof the “conting ency” line item was at the time APCC was e ng ag ed, at lea st one furthe r wrinkle w ould still prec lude summary

judgme nt. Specifica lly , the par ties dispute whether

L angwas the sole repr esentative of the owne rs of the Prope rty with respec t to the construction projec t. I ndiv. Def s.’ Stmt. ¶ 4; P l.’s Stmt . ¶ 4. While L angmay have be en, and in truth likely was, the pr imary point-of-c ontact betwe en the owne rs and APCC, L ang ’s ipse dixit that she re prese nted the

owner s in “substantially

all dealing s,” L angDec l. ¶ 1, is belied by evidenc e sug g esting that others, includingSpreng er a nd employ ees of

the Spreng er L angFoundation, actively interac ted

To the extent Spreng er a nd L angintended to re ly

upon L ang ’s cur sory

five-pa ragraph 9 decla ration as a dditional evidence in support of their conte ntion that their contempora neous understandingwas that APCC was re quired to docume nt and justify any unanticipated c osts, they failed to identify

it as such in their Statement of Material F acts Not in Dispute. SeeIndiv. Defs.’ Stmt . ¶ 5; see also L ocal Rule L CvR 7(h)(1) ( providingthat parties must include spec ific “re fer ence s to parts of the r ecor d relied on to support” their fa ctual conte ntions). Reg ardle ss, while L angasser

ts in her dec laration that “[a] t no time did [ she and Spre ng er] enter into any oral ag ree ment with [ APCC] . . . [t o] pay any ‘conting ency ’ without rec eiving a full explanation of the same at the time the ‘conting ency ’ or unf orese en expense a

rose,” L angDec l. ¶ 4, that asser tion is entirely

conclusory

and devoid of

any fac tual basis and, as suc h, is insufficient to war rant summary

judgme nt in Spreng er a

nd L ang ’s favor. Cf. Ass’n of Flight Attendants-CW

A , 564 F.3d at 465-66 (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). Fur

thermore , while not so clea rly inconsistent with L ang ’s prior de position t estimony such that would wa

rra nt disreg arding it altoge ther a s a “sha

m affida vit,” St. Paul Mercury

Ins. Co. v. Capitol Spri nkler Inspe ction, Inc. , 573 F. Supp. 2d 152, 160-61 (D .D.C. 2008), aff’d , 630 F.3d 217 ( D.C. Cir. 2011), L ang ’s decla ration make s no attempt to ex plain why her r ecollec tion of the “c ontinge ncy” line item has improved in the time since she sat for he r deposition. Wit hout some cre dible explanation for the chang e, the Court ca

nnot cre dit L ang ’s re cent de clar ation to the exclusion of her prior de position testimony

. 12with APCC and its employ ees throughout the course of the c onstruction projec t. I ndiv. Defs.’

Stmt . ¶ 4; Pl.’s St mt. ¶ 4 & Ex. D at SL 0000997, SL 0001016, SL 0001064, SL 0001068, SL 0001236, SL 0001360; L angDep. at 34-35; Sherman De cl. ¶¶ 10, 19. T he extent and scope of those interac tions are not esta blished in the rec ord. I t may very well be the c ase that only L ang wielded c ontrac ting a

uthority , but the question simply cannot be answe red a s a matter of law based on the prese nt rec ord. I n the final a

naly sis, the rec ord in this case ha s been so poor ly develope d by

the par ties that the Court cannot sa

y , one wa y or the other , whether

there was a

“mee ting of

the minds” under the se circ umstances. Where , as her e, ther e is no unambig uous writing g overningthe parties’ relationship, t he law r equire s a “pr obing inquiry” into eac h party ’s under standing , Howard Univ. , 828 A.2d at 737, but the par ties have f

ailed to come f

orwa rd with the sort of r aw fac tual materia l or cog ent ar g ument that would permit such an inquiry . Simpl y by way of example, neither pa

rty even bothe rs to explain how the $85,830 figure, which comprises r oug hly 3.5% of the ove rall estimated c ost of the servic es to be provide d by APCC, came into being

. Simi larly , even thoug h the thirteen a pplications for pa

y ment submitt ed by

APCC consist ently identified the $85,830 amount as part of the “orig inal contra ct sum,” Pl.’s Stm t. Ex . G, and e ven though the “conting ency” line item appe ars in the initial written estimate a longside the line items for “ profit” a

nd “over head,” Pl.’s St mt. Ex . F at APC-00030, two items t hat ty pically do not require specific itemiz ation, Spreng er a nd L angnever

rea lly offe r any explanation as to why

they may have r easona

bly understood the “ conting ency” to be a ny thing other

than what APCC claims it to be. At the same time, while APCC sugg ests in passing that the inclusion of a “c ontinge ncy” amount in ag ree ments of this ty pe is “industry

standard,” Sherman De cl. ¶ 30, it adduc es no

13evidenc e in support of that c laim or eve n attempts to ex plain how the “c ontinge ncy” amount in

this case a ligns with the purpor ted industry

standard. This is potentially signific ant bec ause, in 1 0

asce rtaining the par

ties’ intent, resor

t is often made to customar y prac tices of whic h either pa rty knows or has r eason to know. In re Bailey , 883 A.2d at 118. The Court shall not belabor the point; it has take n the par ties’ ar g uments as fa

r as the r ecor d will allow, although that is decide dly not very far . Ba sed on the pre sent rec ord, Spreng er a nd L ang have f ailed to establish their entitlement to judg ment as a matter of law

. 1 1

Ba sed on the Court’s own r eview of the ca se law, A PCC ’s interpre tation appea rs to 1 0 have some merit. See In re Stone & W ebster, Inc

. , 279 B.R. 748, 801 (B ankr. D . Del. 2002) ( “[I ]t is proper to include in the damag es aw ard r easona ble conting ency

amounts that are part of the construction estimate;” althoug h they “ca nnot be pre cisely

calc ulated,” the y

are “known unknown[s] .”); Sher v. Lafaye tte Ins. Co. , 988 So. 2d 186, 205 (L a. 2008) ( upholding jury awa rd for building damag es that included a n allowanc e for

unspecifie d “conting ency costs,” whe re plaintiff’s expert testified that they wer e “r eal, f

orese eable , but unidentified costs”); see also Steven G.M. Stein, Construction L aw , § 3A.08 (L exis Nexis Matthew Be nder 2010) (“When construction is perf

ormed on a

lump-sum basis, the contrac tor usually includes some conting ency funds in his price f

or dela y s, repe rfor

mance of def

ective w ork, losses not compensated by insurance . . ., and other

such eve nts. I f these c ontinge ncies do not occ ur, they result is additional profit to the contra ctor, a

nd appropr iately

so, beca use he unde rtook the risks associated with these matter s.”). Should this question arise ag ain at trial, the pa rties should be pre pare d to support their re spective positions with citations to relevant c ase la w, pre fer ably

from cour

ts within this Circuit. Although a ffor ded spar se attention in the par ties’ pape rs, and lef

t entirely unaddre ssed 1 1 in Spreng er a

nd L ang ’s re ply

paper s, see ge nerallyI ndiv. Defs.’ Reply , the def iciencie s in the rec ord identified a

bove similarly

prec lude judg ment as a matter of law to the extent APC C’s claims sound in quasi-contra ct, as the Court c annot say on this recor d that a re asonable fac tfinder c ould not conclude that the “ conting ency” amount re prese nts, in part, the valuable service s rende red or

benef it confer red by APCC t o Spreng er a

nd L ang . See Plesha v. Fe rguson , 725 F. Supp. 2d 106, 111 (D.D.C. 2010) (identify ing the elements of c laims for quantum meruit and unjust enrichment). 14IV. 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 Spre ng er a

nd L ang ’s [37] Motion for Summary J udg ment. An appr opriate O rder

acc ompanies this Memorandum Opinion.

Date: Marc h 8, 2011 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

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