Absher Const. Co. v. Kent School Dist. No. 415
| Decision Date | 23 January 1995 |
| Docket Number | No. 33489-1-I,33489-1-I |
| Citation | 890 P.2d 1071,77 Wn.App. 137 |
| Court | Washington Court of Appeals |
| Parties | , 98 Ed. Law Rep. 436 ABSHER CONSTRUCTION CO., a Washington corporation; Chapman Mechanical, Inc., a Washington corporation; and Emerald Aire, Inc., a Washington corporation, Appellants, v. KENT SCHOOL DISTRICT NO. 415, Respondent. |
Samuel Baker, Todd Nelson, Arthur McGarry, Oles Morrison & Rinker, Seattle, for appellant.
Richard Prentke, Vickie Williams, Perkins Coie, Seattle, for respondent.
Absher Construction Co., Chapman Mechanical, Inc., and Emerald Aire, Inc. appeal a summary judgment and the award of attorneys' fees in a breach of contract case. They claim genuine issues of fact were in dispute. We affirm.
Kent School District 415 awarded Absher a contract to build Daniel Elementary School, August 8, 1991. Absher subcontracted with Chapman for the mechanical work, and Chapman subcontracted with Emerald for the air conditioning system (HVAC). Lee Architectural Group and BJSS Group (Lee) contracted with the District to perform the architecture work and subcontracted with Hargis Engineers for the HVAC/mechanical design.
The Absher contract contained alternative dispute resolution procedures. During contract negotiation, Absher acknowledged that these provisions were mandatory. Absher was required to give the District prompt and detailed written notice of any claims 14 days after events giving rise to claims, enter into structured dispute resolution procedures, and mediate any remaining disputes before any lawsuit could be commenced. This requirement could not be waived except by an explicit written waiver signed by the owner. Failure to provide complete written notification was an absolute waiver of any claims arising from or caused by delay. 1 Acceptance of final payment would also constitute a waiver of all unidentified claims. 2 , 3
Construction began in August 1991. Emerald completed installation of the HVAC system in September 1992. A number of claims arose during construction. Absher submitted 102 claims and the District paid 70 of those claims. Six claims were credits back to the District, and the remaining 26 claims were canceled. Three of the submitted claims involved Emerald's work, and were paid through Absher. Absher invoked the dispute resolution procedure on other claims seven times, and all resulted in settlements and agreed contract change orders.
The District approved "substantial completion" on the building and site improvements during August/September 1992 and final acceptance on March 10, 1993. The District forwarded final payment to Absher on March 10, 1993. As a condition of "final acceptance," Absher certified on February 19, 1993, that it had paid in full all known claims for which the District might in any way be held responsible. Two days prior to making its affidavit, Absher received a February 12, 1993, letter from Emerald to Chapman indicating that Emerald anticipated making a claim/request for equitable adjustment for $150,000 to $200,000 within the next week, and that it anticipated filing a claim against the public works bond and retainage. 4
The District received from Absher a copy of the Emerald letter February 23, 1993. In its transmittal, Absher stated that it "was not notified of this claim prior to this letter." Absher did not modify its affidavit that all known claims had been paid. On April 7, 1993, Emerald filed a lien against the statutory retainage and payment bond.
Absher filed suit May 10, 1993, 2 months after final acceptance. Two days later the District received Emerald's request for an "equitable adjustment," seeking more than $200,000 on its original contract price of $286,978. Emerald claimed the District breached its contract with Absher by providing overwhelmingly defective plans.
Absher claims there were material issues of fact in dispute regarding notice, agency, waiver, prejudice, futility, the amount of the claim, and responsibility for nonoccurrence of dispute resolution. The Washington Supreme Court recently reiterated the rules governing review of summary judgment.
A motion for summary judgment may be granted only if, "after viewing all the pleadings, affidavits, depositions, admissions and all reasonable inferences drawn therefrom in favor of the nonmoving party", the trial court finds, "(1) there is no genuine issue as to any material fact, (2) that all reasonable persons could reach only one conclusion, and (3) that the moving party is entitled to judgment as a matter of law".
Higgins v. Stafford, 123 Wash.2d 160, 168-69, 866 P.2d 31 (1994).
The District contends that summary judgment was proper because even taking all of the facts as true, Absher explicitly waived the claims asserted pursuant to numerous provisions of the contract. Voorde Poorte v. Evans, 66 Wash.App. 358, 362, 832 P.2d 105 (1992). Interpretation of an unambiguous contract is a question of law. Thus, "[i]f a contract is unambiguous, summary judgment is proper even if the parties dispute the legal effect of a certain provision." Voorde Poorte, 66 Wash.App. at 362, 832 P.2d 105. Mere unsupported conclusory allegations and argumentative assertions will not defeat summary judgment. Vacova Co. v. Farrell, 62 Wash.App. 386, 395, 814 P.2d 255 (1991). Although the issues framed by Absher are denoted factual disputes, they are actually conclusions of law as to the legal effect of the undisputed facts. We review the facts to determine whether the District was entitled to summary judgment as a matter of law.
Washington law requires contractors to follow contractual notice procedures, unless those procedures are waived. Sime Constr. Co. v. WPPSS, 28 Wash.App. 10, 15, 621 P.2d 1299 (1980); Lindbrook Constr., Inc. v. Mukilteo School Dist. 6, 76 Wash.2d 539, 540-43, 458 P.2d 1 (1969). Absher admits that it was not notified and did not provide written notice of Emerald's claim until months after Emerald had completed all of its work. Thus, Absher did not submit Emerald's claims in writing within 14 days of the events giving rise to the claim, as required by the contract. 5
Absher contends that attendance of District and sub-consultant engineers at project meetings where HVAC design problems were discussed constituted notice. Alternatively, it asserts that addressing problems and comments to, and receiving guidance from sub-consultant Regan Corwin, of Hargis Engineers, constituted a waiver of the notice provision by the District. 6
Under the contract, claims must include the amount of the claim and the length of delay sought. Careful review of the record reveals no claim was made. Emerald uses a "Field Request and Information" form for its design questions. Emerald's submissions of this form did not seek specific costs: the space for "Cost Implication" was always blank, except on a few forms where "to be determined" was filled in. These forms, comments, concerns and objections related by Chapman to sub-consultant Hargis and the District's field personnel during project meetings were not sufficient to meet the contract written notice requirements. Moreover, meeting notes indicate that Emerald did not attend a single field progress meeting. The forms were addressed to Chapman and copies were occasionally sent to Hargis; they were not sent to the District. 7 Thus, the District had no actual knowledge of Emerald's concerns. Even if the District had known of the concerns, those concerns were not claims under the contract.
Here, the District made no written waiver to the contract notice requirement. Where the contract is silent, an architect and its sub-consultants are not a general agent of his or her employer and have no implied authority to make a new contract or alter an existing one for the employer. Valley Constr. Co. v. Lake Hills Sewer Dist., 67 Wash.2d 910, 918, 410 P.2d 796 (1965). Thus, any waiver to the notice requirement would have been by conduct. Waiver by conduct requires unequivocal acts of conduct evidencing an intent to waive. Birkeland v. Corbett, 51 Wash.2d 554, 565, 320 P.2d 635 (1958). Actual authority derives from the principal's objective manifestations of authority to the agent. Smith v. Hansen, Hansen & Johnson, Inc., 63 Wash.App. 355, 363, 818 P.2d 1127 (1991) review denied, 118 Wash.2d 1023, 827 P.2d 1392 (1992). Actual authority can be express or implied, but it is the parties themselves, not the impressions of others, that determines the existence of actual authority. Id. Absher cites no specific conduct by the District evidencing an intent to waive contract provisions explicitly denying the authority of the architect and its sub-consultant to act as its agent. 8 Hargis was not the District's agent and could not waive the notice requirement. Absher's contract explicitly deleted from the AIA (American Institute of Architects) standard form contract the phrase that the architect "will be the Owner's representative." 9 Thus, Absher's contract lacked authority for the architect or its sub-consultant, Hargis, to act as the District's agent. Hargis's contract was not with the District. Absher's contract made it clear that any waiver of notice had to be in writing. In addition, the contract with the architect expressly provided that notice by third parties to the architect shall not be deemed notice to the District. Since the District did not waive the notice requirement, or designate Hargis as its agent, Absher was required to comply with the contract notice requirements.
Absher contends the notice provisions were waived because the District suffered no prejudice. However, Washington does not require an element of prejudice to enforce contractual notice provisions. Sime Constr., 28 Wash.App. at 16, 621 P.2d 1299.
Absher next argues that the provisions of the contract which require it to give notice of claims and enter into...
To continue reading
Request your trial
-
Tadych v. Noble Ridge Constr., Inc., 100049-9
... ... Masters, Masters Law Group PLLC, 321 High School Road Ne., D3-#362, Bainbridge Island, WA, ... Facilities Dist. v. Huber, Hunt & Nichols-Kiewit Constr. Co. , ... , 302, 311 P.2d 420 (1957) ); see also Absher Constr. Co. v. Kent Sch. Dist. No. 415 , 77 ... ...
-
Mike M. Johnson, Inc. v. County of Spokane
... ... , Seattle, amicus curiae on behalf of State School Const ... MADSEN, J ... Absher Constr. Co. v. Kent Sch. Dist. No. 415, 77 ... ...
-
Wife v. Palmer Ridge Homes Llc.
... ... Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wash.2d 873, 880, 73 P.3d 369 ... See Absher Const. Co. v. Kent Sch. Dist. No. 415, 77 ... ...
-
City and County of Denver v. District Court In and For City and County of Denver
... ... v. Board of Directors, Roaring Fork School District, 626 P.2d 686, 690 (Colo.1981), and ... Const. art. XVIII, § 3. An ADR provision requiring ... Dist. v. Shorey, 826 P.2d 830, 840 (Colo.1992) ... 2d 222, 633 N.Y.S.2d 314 (App.Div.1995); Absher Constr. Co. v. Kent Sch. Dist. No. 415, 77 ... ...
-
Claims and Disputes Against a State or Local Government Owner: What Construction Attorneys Should Know
...unequivocal acts demonstrating its intent to waive the provision); Absher Constr. Co. v. Kent Sch. Dist. No. 415, 77 Wash. App. 137, 145, 890 P.2d 1071, 1075 (1995) (“Washington does not require an element of prejudice to enforce contractual notice provisions.”); but see Bignold v. King Cty......