Baltimore County v. Aecom Serv. Inc., 1301

Decision Date01 September 2011
Docket NumberNo. 1301,2009.,Sept. Term,1301
Citation200 Md.App. 380,28 A.3d 11
PartiesBALTIMORE COUNTY, MARYLANDv.AECOM SERVICES, INC., f/k/a DMJM H & N, Inc.
CourtCourt of Special Appeals of Maryland

OPINION TEXT STARTS HERE

James J. Nolan & Jennifer Frankovich (Michael E. Field, County Attorney, on the brief), Baltimore, MD, for appellant.James F. Lee, Jr. (Arthur T.K. Norris, Lee & McShane, PC, on the brief), Washington, D.C., for appellee.Panel: MEREDITH, HOTTEN and WATTS, JJ.WATTS, J.

This appeal concerns a dispute between Baltimore County (the “ County”) and DMJM H & N, Inc., now known as AECOM Services, Inc. (“DMJM”), 1 regarding payment for services performed in connection with the expansion of the Baltimore County Detention Center. The County and DMJM entered into a contract in which DMJM was appointed as the [a]rchitect to provide professional architectural/engineering services in connection with a project to construct an addition and associated parking structure at the Baltimore County Detention Center (the “Project”).2 The County filed suit against DMJM in the Circuit Court for Baltimore County alleging breach of contract and negligence, and DMJM filed a Counterclaim and an Amended Counterclaim seeking payment for services under the “base contract” and for “additional services.” A jury awarded damages in favor of DMJM, including payment for the additional services. The County noted this timely appeal and raised two issues, which we quote:

I. Whether the Circuit Court erroneously denied Baltimore County's Motion for Judgment at the conclusion of the trial with respect to DMJM's claim for additional services, because there was no contract amendment approved by the County Council for those services?

II. Whether DMJM's counterclaim for additional services was barred by the one-year statute of limitations in Md. Ann.Code, Article 25A, § 1A(c)? 3

DMJM filed a cross-appeal and raised one issue, which we quote:

I. Did the trial court err in refusing to submit to the jury the issue of pre-judgment interest on [DMJM]'s counterclaim for unpaid fees; and did the trial court improperly usurp the role of the jury by making its own fact-based ruling denying [DMJM] any pre-judgment interest, whether on the base contract award or additional services?

We answer the County's first question in the affirmative, and answer DMJM's question in the negative. As such, we shall reverse, in part, and affirm, in part, the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On December 18, 2000, the parties entered into the Department of Public Works Agreement for Architectural Services (the “contract”) which appointed DMJM as the architect to provide professional architectural/engineering services in connection with the Project. Under the contract, DMJM was to be paid $4,516,779.16. As to changes in the work or services to be performed and payment, the contract provided, in pertinent part, as follows:

ARTICLE 4—CHANGES

4.1 The County may, at any time, by written order, make changes within the general scope of this agreement in the services or work to be performed. If such changes cause an increase or decrease in the Architect's cost of, or time required for, performance of any services under this Agreement, whether or not changed by any order, an equitable adjustment shall be made and this Agreement shall be modified in writing accordingly. Any claim of the Architect for adjustment under this clause must [be] asserted in writing within thirty (30) days from the date of receipt by the Architect of the notification of changes unless the County grants a further period of time before the date of final payment under this agreement.

4.2 No services for which an additional compensation will be charged by the Architect shall be furnished without the written authorization of the County.

* * *

ARTICLE 7—PAYMENT (COST PLUS PROFIT)

* * *

7.2 Direct Labor Costs, as used herein, shall be actual salaries paid to productive employees before tax and other deductions and does not include overhead expenses, administrative support time, payroll taxes, workmen's compensation and/or other insurances summary of the total Professional Fee and Other Direct Costs. This amount shall not exceed a total value of Four Million Five Hundred Sixteen Thousand, Seven Hundred Seventy–Nine and 16/100 Dollars ($4,516,779.16) unless authorized by properly executed amendment.

There shall be no interchangeability between the Upset Limit for Professional Fee and the Upset Limit for Other Direct Costs unless there is an approved amendment to the agreement. Such amendment may be approved by the County Administration if there is no increase in the total contract price under this section.

* * *

7.11 Final payment to the Architect shall be made upon completion and acceptance of the professional services specified under the terms of this agreement.

* * *

ARTICLE 21—SPECIAL CAUSES

21.1 Council Approval: The Architect covenants that this Agreement is subject to and in compliance with provisions of Section 715 of the Baltimore County Charter, Article VII, title, “Budgetary and Fiscal Procedures.”

On September 19, 2005, the parties entered into an Amendment to [the] Contract” increasing the contract payment from the original contract price of $4,516,779.16 to $4,785,752.36. The amendment was signed by the President of DMJM, the Administrative Officer of the County and the Baltimore County Council Chairman. The Amendment was approved for legal form and sufficiency by an Assistant County Attorney, and was reviewed and approved by the Director of the Office of Budget and Finance for the County.

On January 20, 2006, the County filed a two-count complaint against DMJM in the Circuit Court for Baltimore County alleging that DMJM breached the contract and negligently performed architectural/engineering services resulting in damages to the County in the amount of five million dollars. DMJM filed an Answer and Counterclaim. In the Counterclaim, DMJM alleged breach of contract and sought an award of $800,000 in unpaid fees and interest under the contract.

On April 16, 2008, the County filed an amended complaint, and DMJM filed an answer. The County propounded interrogatories including interrogatory number five which directed: “Itemize and show how you calculate any contractual damages claimed by your Counterclaim, and describe any non-economic damages claimed by you.” On August 18, 2008, DMJM filed supplemental answers to interrogatories, including a supplemental answer to interrogatory number five, stating:

DMJM's claim for unpaid Architectural and Engineering base services is based on time expended. The time records and invoices have, or will be, produced to Baltimore County and are incorporated by reference. The amount owed for base contract services is $782,577.78. A summary of additional services claimed is attached to these Supplemental Answers and totals $1,633,060.30 for a total counterclaim of $2,415,638.08.

(Emphasis added). Attached to the supplemental answers to interrogatories, DMJM provided a spreadsheet which contained five categories, A, B, C, D, and E, titled as follows:

A. Original A/E Services Agreement and Agreement Modification(s)

B. Submitted, Negotiated, But No Contract Modification Executed

C. Submitted, Not Negotiated or Authorized

D. Submitted, Informally Authorized, No Contract Modification Executed

E. Pending, Not Submitted.

Under category A, [o]riginal A/E Services Agreement and Agreement Modification(s),” DMJM listed the contract amount as amended on September 19, 2005, $4,785,752.36. Under the remaining categories, DMJM listed the following amounts as “Proposal Amounts”:

B. Submitted, Negotiated, But No Contract Modification Executed: $667,047.11

C. Submitted, Not Negotiated or Authorized: $84,578.87

D. Submitted, Informally Authorized, No Contract Modification Executed: $18,586.34

E. Pending, Not Submitted: $999,453.06.

This spreadsheet was admitted at trial as the County's Exhibit 173B.

On January 7, 2009, the County filed a second amended complaint, and on May 1, 2009, the County filed a third amended complaint, setting forth six counts: (1) Breach of Contract; (2) Negligence; (3) Negligence–Special Representation; (4) Intentional Misrepresentation; (5) Negligent Misrepresentation; and (6) Concealment/Deceit. DMJM filed a Motion for Partial Summary Judgment. Following a hearing, the trial court granted DMJM's Motion for Partial Summary Judgment as to counts three, four, five, and six of the County's Third Amended Complaint. As a result, only count one (Breach of Contract) and count two (Negligence) of the Third Amended Complaint remained for trial.

On February 20, 2009, in a document titled “Second Supplemental Answers to Interrogatories,” DMJM claimed damages totaling $2,173,714.37. Attached to the Second Supplemental Answers to Interrogatories was a spreadsheet listing five categories, A, B, C, D, and E, containing the same titles as those in the spreadsheet attached to DMJM's August 18, 2008, Supplemental Answers to Interrogatories. The amounts identified under each category were, however, different. Under category A, [o]riginal A/E Services Agreement and Agreement Modification(s),” DMJM listed the unpaid contract amount claimed as $782,577.78. Under the remaining categories, DMJM listed the following amounts as “Proposal Amounts”:

B. Submitted, Negotiated, But No Contract Modification Executed: $288,518.32

C. Submitted, Not Negotiated or Authorized: $84,578.87

D. Submitted, Informally Authorized, No Contract Modification Executed: $18,586.34

E. Pending, Not Submitted Before County Filed Lawsuit: $999,453.06.

The spreadsheet contained an additional category, “F,” titled “Subtotal, Additional Services,” and under “Proposal Amount” DMJM listed $1,391,136.59. On the spreadsheet, DMJM listed the following totals:

Total Earned Fees: $6,176,888.95Total Paid Fees: $4,003,174.58Total Unpaid Fees: $2,173,714.37.

This spreadsheet was also attached to the County's Motion for Partial...

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