Alfred A. Altimont v. Chatelain, Samperton

• Decision Date: 05 May 1977
• Docket Number: No. 9890.,No. 9879.,9879.,9890.
• Citation: 374 A.2d 284
• Parties: ALFRED A. ALTIMONT, INC., a corporation, Appellant, v. CHATELAIN, SAMPERTON & NOLAN, a partnership, Appellee. CHATELAIN, SAMPERTON & NOLAN, a partnership, Appellant. v. ALFRED A. ALTIMONT, INC., a corporation, Appellee.
• Court: D.C. Court of Appeals

374 A.2d 284

ALFRED A. ALTIMONT, INC., a corporation, Appellant, v. CHATELAIN, SAMPERTON & NOLAN, a partnership, Appellee.

CHATELAIN, SAMPERTON & NOLAN, a partnership, Appellant. v. ALFRED A. ALTIMONT, INC., a corporation, Appellee.

No. 9879.

No. 9890.

District of Columbia Court of Appeals.

Argued October 7, 1976.

Decided May 5, 1977.

COPYRIGHT MATERIAL OMITTED

Clarice R. Feldman, Washington, D.C., with whom William W. Becker and George W. Shaffer, Jr., Washington, D.C., were on the briefs, for appellant in No. 9879 and appellee in No. 9890.

John J. O'Neill, Jr., Washington, D.C., for appellee in No. 9879 and appellant in No. 9890.

Before KELLY and GALLAGHER, Associate Judges, and REILLY, Chief Judge, Retired.

KELLY, Associate Judge:

These appeals are from the resolution by the trial court of disputes between the contractor and the architect who were engaged to build the Union Wesley AME Zion Church of Washington, D.C. They arise in the context of suits by the contractor against the architect for interference with its contractual relations with the church, interference with its business relations with the bonding company, and libel and slander.

Construction of the church building was begun in 1955, but as of 1970 only the foundations and the basement level were complete. In June of 1970, Union Wesley Church (the Church), which had acquired the structure sometime after 1955, decided to proceed with construction of the church sanctuary. To this end it employed the architectural firm of appellee Chatelain, Samperton & Nolan (Chatelain). Chatelain completed the revisions of plans for the church which had been prepared by another architect in October of 1970. Bids from contractors were then solicited and in January 1971, Alfred A. Altimont, Inc. (Altimont), whose bid was the lowest by some $23,000, was awarded the contract. Although the parties to the contract were the Church and Altimont, Chatelain was to see to its performance in all aspects of construction as the designated representative of the Church. Altimont secured the requisite performance bond from Fidelity and Deposit Insurance Company of Maryland (Fidelity), a company with which it had dealt in the past.

Under the terms of the contract, construction was to be completed as close as possible to May 1, 1971. Shortly after work was begun, however, Altimont submitted a revised progress schedule, apparently approved by Chatelain, estimating a completion date of September 30, 1971. Because of a further series of delays the completion date was extended to October 30, but by this time construction work was so far behind schedule that even this deadline was deemed impossible to meet. The building was still far from completion when, on December 27, 1971, Chatelain sent Fidelity a letter, with a copy to Altimont, in which it expressed its distress at the slow construction progress. The letter said in essence that there were many days when no one was on the job, that Altimont was not promptly and faithfully performing the contract and, indeed, Altimont might be in default thereof. A meeting to rectify matters was suggested. Altimont responded to this letter on December 28, 1971, charging the delays of which Chatelain complained to errors, omissions and changes in the architectural drawings.

Chatelain wrote to Fidelity again on January 3, 1972, this time without sending a copy to Altimont. In the letter Chatelain blamed Altimont for construction delays and ended by saying: "We feel [Altimont] is extremely negligent in [its] duties as a General Contractor." Fidelity acknowledged receipt of both letters on January 6, 1971, stating that its position was the same as that of its principal. At the same time it furnished Altimont with a copy of the Chatelain letter of January 3 to which Altimont wrote a four page response detailing to Chatelain what it considered errors and changes in the architectural drawings. The correspondence prompted a meeting on January 13 at which all parties agreed to cooperate in completing the job as soon as possible. Nevertheless, Mr. John S. Samperton, of Chatelain, said at the meeting he would not retract the statements made in the Chatelain letters and was allegedly heard to remark to others after the meeting that he thought Altimont should get out of the construction business. It is this statement and the letters of December 27 and January 3 which constitute the alleged defamation.

Affairs did not improve and the construction work was not completed. In June of 1972, Altimont submitted to the Church claims for extra costs caused by delays. The claims were disputed, so Altimont requested arbitration in accordance with the terms of the contract. While the arbitrator subsequently awarded Altimont $34,650 for delays, it is not clear on this record whether the Church ever paid the award. What is clear is that the disputes and delays continued. In November or December of 1972, Altimont submitted to the Church a list of subcontractors to whom a total of $60,556.63 was owed. When the Church refused to pay this claimed indebtedness, Altimont walked off the job. The Church employed another contractor to complete construction.

Meanwhile, Altimont had begun a series of lawsuits. The first, filed against Chatelain in June of 1972, was for libel, slander, and interference with Altimont's business relations with Fidelity and other bonding companies.¹ The second, filed in March 1974, alleged an intentional or malicious interference with Altimont's contract with the Church. In the latter suit Chatelain counterclaimed for malicious abuse of process and negligence.² The two actions were consolidated for trial and after seven days of trial before a jury, the court granted Chatelain's motion for a directed verdict on all of Altimont's claims and also directed a verdict against Chatelain on its counterclaims.

I.

We first address Altimont's contention that it was error to consolidate the actions for trial,³ recognizing as we do so that a question of consolidation is a decision in which the court has great latitude and that its ruling thereon is not to be disturbed on appeal except for an abuse of discretion.⁴ Dupont v. Southern Pacific Company, 366 F.2d 193 (5th Cir. 1966); Whiteman v. Pitrie, 220 F.2d 914 (5th Cir. 1955). No such abuse is present here.

Altimont concedes that common questions of law and fact appear in both causes of action since both arise from the same set of circumstances, i. e., the building of the church and the disputes over who was to be charged for the many delays. Additionally, it was clear that trial on the three counts would include much of the same evidence, and the same witnesses and testimony, especially since a defense of privilege is raised as to each count. Consolidation therefore avoids duplication in potentially lengthy trials. Consolidation was not improper simply because in each case some questions of law or fact might be different, and neither the fact that the jury might possibly be confused by instructions necessitated by consolidation nor the fact that the two cases were in disparate stages of trial preparation outweighed the obvious advantages of trying the cases together. The order of consolidation was clearly a proper exercise of the court's discretion.

II.

In order to recover for inducement of breach of contract, four things must be proven: (1) existence of a contract, (2) knowledge of the contract, (3) intentional procurement of its breach by the defendant, and (4) damages resulting from the breach. Hunter Vending Company v. D.C. Vending Co., Inc., D.C.App., 345 A.2d 142, 143 (1975). Once a prima facie case has been established liability may still be avoided if the defendant can establish that his conduct was legally justified or privileged. Deoudes v. G.B. Macke Corporation, D.C. Mun.App., 153 A.2d 309 (1959); Meyer v. Washington Times Co., 64 App.D.C. 218, 76 F.2d 988, cert. denied, 295 U.S. 734, 55 S.Ct. 646, 79 L.Ed. 1682 (1935); Prosser, Torts § 129 (4th ed. 1971).

The trial judge's ruling that Altimont had failed to establish a prima facie case of interference with contractual relations is correct. Examination of the record reveals no evidence that Chatelain intentionally induced the Church to breach its contract with Altimont even assuming that the Church was the party in breach.⁵ On the contrary, the only evidence on the cause of the breach is that in November or December of 1972, Altimont submitted to the Church a list of amounts owed to various subcontractors totalling $60,556.63. The Church refused to pay, contending that it had already given Altimont the money to satisfy its obligations to the subcontractors. Altimont, in turn, refused to continue work until these amounts were paid and so, on December 17, 1972, walked off the job. A later demand by Altimont for an extra $1,000 per week to finish the job was declined by the Church. Whether or not the Church would have been paying twice if it paid the amounts on the December list, there is no evidence that Chatelain intentionally or otherwise induced the Church not to pay. Thus, there being insufficient evidence to create an issue of fact for the jury on the crucial third element, the court correctly directed a verdict on this count.

III.

The letters of December 27, 1971 and January 3, 1972, underpin Altimont's claim that Chatelain tortiously interfered with its business relations with Fidelity and other bonding companies. The result of this interference allegedly has been Altimont's inability to obtain bonding, thus driving it out of the construction business. Altimont contends that the court erred in directing a verdict on this count on the premise that there was insufficient evidence that Altimont was damaged by Chatelain's intentional, unjustified interference with its business relations to raise an issue for the jury. It contends also that the trial judge appears to have erroneously based direction of the verdict on the ground that...