Accubid v. Kennedy, 992, Sept. Term, 2008.

Citation188 Md. App. 214,981 A.2d 727
Decision Date05 October 2009
Docket NumberNo. 992, Sept. Term, 2008.,992, Sept. Term, 2008.
PartiesACCUBID EXCAVATION, INC. v. KENNEDY CONTRACTORS, INC.
CourtCourt of Special Appeals of Maryland

Howard S. Stevens (Jason R. Potter, Wright, Constable & Skeen, LLP, on brief), Baltimore, for Appellant.

Scott D. Miller (Weinberg & Miller, LLC, on brief), Frederick, for Appellee.

Panel: DAVIS, HOLLANDER and WRIGHT, JJ.

DAVIS, J.

Appellant, AccuBid Excavation, Inc., appeals from a judgment by the Circuit Court for Frederick County, awarding appellee, Kennedy Contractors, Inc., $41,296.16 in attorney's fees, in addition to attorney's fees previously awarded. The genesis of these proceedings was a mechanic's lien action filed by appellant, a subcontractor to appellee, in the Circuit Court for Frederick County, in conjunction with a construction project. Trial proceeded in the circuit court on appellee's breach of contract counter-claim based on the alleged failure of appellant to perform in accordance with its construction subcontract.

In 2000, at the conclusion of the trial, the court entered judgment against appellant in the amount of $78,222.20, including an award of $48,222 for appellee's attorney's fees, provided for under the subcontract between the parties governing attorney's fees. In an appeal to this Court filed by appellant from the trial court's decision, in an unreported opinion,1 we disallowed "interest carry charges," thereby partially vacating and, in effect, reducing the money judgment entered against appellant.

On remand, pursuant to appellee's Petition for Additional Attorney's Fees, filed September 24, 2002, the circuit court entered judgment on June 8, 2004, awarding appellee $14,700 in additional attorney's fees. Appellant appealed the court's award of these additional attorney's fees to this Court and we vacated the award of additional fees in its entirety and remanded the case to the trial court with direction for the circuit court to revise its judgment in accordance with our unreported opinion.2

On March 30, 2006, the trial court entered a revised judgment, pursuant to our mandate, which was recorded on April 3, 2006. On April 10, 2006, the clerk issued the Notice of Modification of Judgment, the judgment becoming enrolled as a final judgment on May 3, 2006. On May 16, 2006, appellant filed a Plea of Tender requesting that appellee be required to accept post-judgment interest running from the June 8, 2004. Appellee filed its opposition thereto on May 31, 2006 and requested post-judgment interest dating back to the court's first entry of judgment in June 2000, as opposed to the intermediate June 8, 2004 judgment or the March 30, 2006 final judgment. Appellee's opposition to the Plea of Tender also requested additional attorney's fees pursuant to the provision for attorney's fees in the contract between the parties.

After a hearing on appellee's request for interest, the circuit court ruled that post-judgment interest would accrue as of June 27, 2000, the date of the first judgment. Appellant, for the third time, appealed to this Court; we dismissed the appeal as premature. On remand, appellant filed a Motion to Dismiss, Alternatively, Motion for Summary Judgment with respect to appellee's request for additional attorney's fees on December 22, 2006. Subsequent to appellee's opposition to the Motion, the circuit court, on May 6, 2008, conducted a hearing and denied appellant's Motion. On June 3, 2008, the court held an evidentiary hearing to consider the amount, if any, of attorney's fees to be awarded to appellee. Appellee's counsel cited the subcontract between the parties as the basis of his request for attorney's fees. At the conclusion of the hearing, the court "clarified" that the award was "for attorney's fees incurred basically after April 3, 2006," which was the date the clerk recorded the final judgment. In response to further requests for clarification from appellant's counsel, the court stated that its attorney's fee award was not a revision to the April 3rd final judgment:

I don't think it can be.... Because what the Court of Special Appeals did was said that [sic] that [Judge Dwyer's August 16,2006 oral order awarding post-judgment interest and reserving on attorney's fees] is a non final order because I reserved on attorney's fees. That order did not touch that [April 3, 2006 final] judgment I don't think.

The court opined, "I don't think I have any authority to award attorney [sic] fees in this, other than pursuant to the subcontract, how's that?" The court added that, "if that subcontract [between the parties] did not, um, survive that April 3rd order then Mr. Miller's [attorney's fee request is] in trouble."

As noted, in a written order filed June 12, 2008, the trial judge awarded appellee $41,296.16 in additional attorney's fees, in addition to the award of $48,222 that was included in the final judgment against appellant. This appeal followed.

Appellant filed this timely appeal, presenting the following questions, which we rephrase slightly, for our review:

I. Did the trial court err when it awarded additional contract-based attorney's fee damages requested after the entry of a non-appealable and enrolled final judgment on the contract in question?

II. Did the trial court err in granting post judgment interest to accrue from the date of the first judgment entered in this case, even though that judgment amount has since been subject to multiple reductions due to appeals taken to this Court?

For the reasons that follow, we answer appellant's first question in the affirmative and the second question in the negative and accordingly affirm, in part, and vacate, in part, the judgments of the Circuit Court for Frederick County.

FACTUAL BACKGROUND3

On November 15, 1996, appellee entered into a contract with the owner and developer of the New Market Food Lion Shopping Center, Lionheart, to construct a grocery store for its principal tenant, Food Lion, at that location. According to that contract, appellee was to serve as general contractor for the Project. The contract provided that time was "of the essence," and that appellee had to "achieve Substantial Completion" of its work "not later than 210 days from the date of commencement." The contract defined the "date of commencement" as "ten days after the issuance of all required building permits or a Notice to Proceed from the Owner, whichever occurs last."

Three and a half months later, on February 26, 1997, appellee entered into a "lump sum" subcontract with appellant, in which the latter agreed, inter alia, to widen Route 144 and complete on-site paving and water and sewer utility work. Appellant also agreed to furnish all labor materials, tools, fees, taxes, insurance, permits, licenses and all miscellaneous costs to achieve Site Work requirements in accordance with plans and specifications prepared by Lionheart's engineering consulting firm, Loiderman Associates. Inc. (Loiderman). Appellant then entered into a contract with Frederick County for on and off-site utility installation on the Food Lion Project.

Appellant obtained the subcontract with appellee through a competitive bidding process, which required appellee to provide potential bidders with documents (bid documents), prepared by Loiderman. Based on the bid documents, appellant submitted a bid, which was accepted by appellee and the parties then entered into the subcontract, in which appellant stated that it had "visited the site and [was] familiar with the existing conditions." It also represented that it had "reviewed the plans and specifications and that said plans and specifications [were] complete and/or sufficient to provide a complete operating system." It further stated that, "with exception of design changes," it could "complete the project with no additional cost to Contractor." And it agreed that it would not "be entitled to any extras or change orders resulting from `insufficient information' to complete its portion of the work."

On October 16, 1997, eight months after appellant began work on the Project on March 13, 1997, according to appellant, the location of the "edge of existing paving" was exposed when "excavation for the subgrade of the road widening was initiated." It was at this time, appellant claims, that the true "subsurface condition" of the road was revealed and it was discovered that those conditions were different from what was depicted in the bid documents provided by appellee.

The next day, a Frederick County inspector noted in his "Daily Log" that the "[e]xisting shoulder [of Route 144] has approx [sic] 2 to 5 [inches] of tar & chip surface." The inspector, having observed that "[t]here appears to be a discrepancy in the plans as to what surface is to be removed," wrote that "Frederick County will not accept tar & chip shoulder as main line travel area." Appellant, accordingly, requested a "change order" from appellee for additional compensation for what it claimed was an increase in the amount of paving necessary to complete the project over what was set forth in the bid documents. In a letter dated October 28, 1997, Keith Flannagan, appellee's project manager, denied the request, stating that, after consulting with its engineer, appellee believed that "the plans adequately cover[ed][the] area and that no additional cost [was] justified." Flannagan further wrote: "It is my understanding that your firm has left this site until this question has been answered. Please continue on this work as per our contract to avoid impacting our schedule." The letter concluded that it was to be considered as "notification to [appellant] to continue this work as required by our contract."

Rather than resume working, appellant wrote a letter to appellee, dated November 7, 1997, advising appellee that it was "willing to perform any additional work as long as we are provided drawings which illustrate what is to be done" and that it "never agreed to do additional...

To continue reading

Request your trial
23 cases
  • Baker's Express, LLC v. Arrowpoint Capital Corp.
    • United States
    • U.S. District Court — District of Maryland
    • September 20, 2012
    ...fees recoverable pursuant to a contract are part of the damages claim'") (quoting AccuBid Excavation, Inc. v. Kennedy Contractors, Inc., 188 Md.App. 214, 231, 981 A.2d 727, 737 (2009)); Monarc Const., Inc. v. Aris Corp., 188 Md. App. 377, 399, 981 A.2d 822, 831 (2009) (same). Indeed, Maryla......
  • Jones v. Aberdeen Proving Ground Fed. Credit Union
    • United States
    • U.S. District Court — District of Maryland
    • April 5, 2022
    ... ... See, e.g. , Cain , ... 2016 WL 1597179, at *9; Monarc , 188 Md.App. at 394, ... 981 A.3d at 831-32; Accubid Excavation, Inc. v. Kennedy ... Contractors, Inc. , 188 Md.App. 214, 232, 981 A.2d 737 ... (2009). Restatement of Judgments § 18 ... ...
  • Harder v. Foster
    • United States
    • Kansas Court of Appeals
    • July 28, 2017
    ...Pollard , 47 Kan. App. 2d 820, 827, 283 P.3d 817 (2012) (parties can contract regarding postjudgment interest); Accubid v. Kennedy , 188 Md. App. 214, 237, 981 A.2d 727 (2009) (postjudgment attorney fees).Because Foster relies on Arbor Lake, we will examine it more closely. The case involve......
  • Roger E. Herst Revocable Trust v. Blinds To Go (U.S.) Inc.
    • United States
    • U.S. District Court — District of Maryland
    • December 20, 2011
    ...action." SunTrust Bank v. Goldman, 201 Md. App. 390, ___, 29 A.3d 724, 731 (2011); see also AccuBid Excavation, Inc . v. Kennedy Contractors, Inc., 188 Md. App. 214, 233, 981 A.2d 727, 738 (2009). After entry of judgment, interest will accrue at the federal post-judgment interest rate. That......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT