596 F.3d 286 (5th Cir. 2010), 09-20155, Addicks Services, Inc. v. GGP-Bridgeland, LP

Docket Nº:09-20155.
Citation:596 F.3d 286
Opinion Judge:KING, Circuit Judge:
Party Name:ADDICKS SERVICES, INC., Plaintiff-Appellant, v. GGP-BRIDGELAND, LP, formerly known as Rouse-Houston, LP; Bridgeland GP, LLC; Safeco Insurance Company of America, Defendants-Appellees.
Attorney:Cynthia Ann Holub (argued), Nancy Hahn Elliott, Allison J. Snyder, Porter & Hedges, L.L.P., Houston, TX, for Plaintiff-Appellant. Lee A. Collins (argued), Craig Douglas Dillard, Boyar & Miller, Houston, TX, for Defendants-Appellees.
Judge Panel:Before KING, GARZA and HAYNES, Circuit Judges.
Case Date:February 08, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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596 F.3d 286 (5th Cir. 2010)

ADDICKS SERVICES, INC., Plaintiff-Appellant,


GGP-BRIDGELAND, LP, formerly known as Rouse-Houston, LP; Bridgeland GP, LLC; Safeco Insurance Company of America, Defendants-Appellees.

No. 09-20155.

United States Court of Appeals, Fifth Circuit.

February 8, 2010

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[Copyrighted Material Omitted]

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Cynthia Ann Holub (argued), Nancy Hahn Elliott, Allison J. Snyder, Porter & Hedges, L.L.P., Houston, TX, for Plaintiff-Appellant.

Lee A. Collins (argued), Craig Douglas Dillard, Boyar & Miller, Houston, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, GARZA and HAYNES, Circuit Judges.

KING, Circuit Judge:

In this contract action, plaintiff-appellant is a contractor seeking damages for extra work and delay costs incurred performing land improvement for a residential development in Harris County, Texas. The district court granted summary judgment to defendants-appellees, holding that plaintiff-appellant's claims were barred by waivers and releases it executed monthly to receive progress payments. We affirm.


GGP-Bridgeland, LP (" Bridgeland")1 is the owner of Bridgeland, a residential development in Harris County, Texas. Addicks Services, Inc. (" Addicks"), submitted a bid to perform excavation and grading work on the approximately 500-acre site. On July 20, 2004, Addicks and Bridgeland executed a Standard Form of Agreement Between Owner and Contractor (the " Contract"). Addicks's role was to perform " cut and fill" services, which involve excavating or " cutting" the land on the site to create lakes and other scenic features. The excavated dirt or " spoil" produced from the excavation would then be spread or " filled" across the development to create a uniform elevation. Under the original terms of the Contract, Addicks was required to cut and fill slightly more than 2 million cubic yards of dirt in 150 calendar days; it would receive $4,582,721.79 for this service.

The parties contemplated that the Contract would consist of multiple documents.

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The Contract defines " Work" as " the work described in the Drawings and Specifications ... and any requirements set forth in any other Contract Documents enumerated in Article XIX." (Contract ¶ 1.1.) Article XIX is labeled " Integration Clause" and consists of two provisions. The first provides that the Contract, together with its attached exhibits and documents incorporated by reference, is the entire agreement and supersedes prior negotiations, representations, and agreements. (Contract ¶ 19.1.) It further contained a no-oral-modification clause stating that the Contract could be amended or modified only in written change order forms signed by both Addicks and Bridgeland. (Id.) The second provision enumerated the documents constituting the Contract.2 (Contract ¶ 19.2.)

Two articles in the Contract dealt specifically with changes and modifications to the work Addicks was to perform under the Contract. Addicks was required to notify Bridgeland of any " claim[] for additional compensation, extra work, delay, extensions of time, or loss, injury or damages" within ten days of its occurrence. (Contract ¶ 10.1.) Addicks was then required to submit a detailed claim within thirty days and to submit a change order proposal on request of Bridgeland. (Contract ¶ 10.2.) Addicks agreed to perform changes and modifications to the scope of work under the Contract that were requested by Bridgeland in writing; payment for such changes was governed by the Contract's schedule or by the cost plus a 5% markup. (Contract ¶ 12.1.) If the parties disagreed over a particular change, Addicks was required to proceed with the modification and prepare a change order proposal, which was " subject to full audit, review and approval by [Bridgeland]." (Id.)

Article VIII of the Contract governed payment to Addicks. The Contract specified that Addicks would perform the requested work for $4,582,721.79 (Contract ¶ 8.1), but it also provided for monthly progress payments (Contract ¶ 8.2). To receive a progress payment, the Contract contemplated that Addicks would submit a written application detailing the work performed to date; the application would be accompanied by an executed lien waiver that would release Addicks's mechanic's and materialman's lien on the project. (Id.) Blank lien waiver forms were attached to the Contract. The relevant form was entitled " Waiver and Release of Lien upon Progress Payment" (the " Interim Waiver"), and provides, in relevant part:

[Addicks], in consideration of the sum of $__________, hereby waives and releases its lien and right to claim a lien for labor, services, or materials furnished through __________ (date of this waiver) under contract with __________ on the job of __________ (Owner) to the following property: __________ (Name and Address of Project). This waiver and release does not cover any retention or labor, services or materials furnished after the date specified.

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Any and all ... subcontractors ... have been paid and satisfied in full, and there are no outstanding claims of any character arising out of, or related to, the undersigned's activities on, or improvements to, the Project.

This Waiver constitutes a representation by [Addicks] that the payment referenced above, once received, constitutes full and complete payment for all work[3] performed, and all costs or expenses incurred (including, but not limited to, costs for supervision, field office overhead, home office overhead, interest on capital, profit, and general conditions costs) relative to the work or improvements at the Project as of the date of this Waiver, except for the payment of retainage. [Addicks] specifically waives, quitclaims and releases any claim for damages due to delay, hindrance, interference, acceleration, inefficiencies or extra work, or any other claim of any kind it may have ... as of the date of this Waiver, except as follows: _________________________________.

This Waiver is specifically made for the benefit of [Bridgeland]. The amount of money set forth as due and owing in the immediately preceding Waiver dated _____, 20__, has been received, and is deemed paid in full.

(Contract Ex. E.)4

Addicks received notice to proceed with the project in August 2004. Addicks claims that, subsequent to commencing work, a number of factors hindered its timely performance, including Bridgeland's requests for additional work, inclement weather, and site accessibility problems. Pursuant to the mechanisms in the Contract, Addicks made numerous requests for information regarding work, for extension of time, and for change orders to reflect the additional work performed and to adjust the price of the Contract accordingly. In some of the change order requests, Addicks included the following language: " This modification constitutes compensation in full on behalf of [Addicks] for direct costs only which are attributable to the changes ordered herein. [Addicks] [r]eserves all rights to time extension, time related costs and any indirect cost[s] that result or flow from the changes ordered herein." Addicks's records reflect that during the relevant time frame, Bridgeland approved an extension of twelve calendar days and sixteen change orders5 that increased the price of the Contract by $1,528,052.82 to a total of $6,110,774.61.6 The project was certified complete on November 25, 2005, approximately eleven months behind schedule. Addicks claims that many of the claims it submitted to Bridgeland for approval were paid in part or not at all.

While the project was ongoing and many of these requests for change orders were pending, Addicks submitted applications

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for progress payments and executed Interim Waivers. Addicks asserts that Bridgeland would not permit it to include claims for work on these payment applications unless the work had been reduced to a change order. Each of the fifteen Interim Waivers that appears in the record was executed on the twenty-fifth day of the month, with only one exception,7 from August 2004 through November 2005.8 Each Interim Waiver corresponds to a payment application submitted by Addicks, and the amount requested in each payment application is typically identical to the amount cited in the corresponding Interim Waiver.9 Despite the presence of a blank space for exceptions to Addicks's assertion that it " specifically waive[d], quitclaim[ed], and release[d] ... any and all claims," Addicks did not list any claims-for extra work, delay damages, or otherwise-in any of the fifteen Interim Waivers it executed.

After the project was certified complete on November 25, 2005, Addicks and Bridgeland continued to dispute whether further payment was due. In February 2006, Addicks filed a mechanic's and materialman's lien against the Bridgeland property in the amount of $2,257,394.97. The parties reached a partial settlement through negotiations in June 2006. In October 2006, Addicks filed a petition in state court, claiming over $3 million in damages; it has since reduced its request for relief to $2,160,957.00.10 Addicks claimed entitlement to these damages under theories of breach of contract, quantum meruit, and promissory estoppel. Bridgeland answered on October 30, 2006,11 and removed the case, based on diversity jurisdiction, to federal district court on November 3, 2006. Bridgeland later filed a counterclaim against Addicks for breach of contract and

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promissory estoppel.12 Pursuant to 28 U.S.C. § 636(c), the parties consented to have all proceedings, including trial and judgment, proceed before a magistrate judge.

After discovery had been completed...

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