Contractors v. Tuskegee Univ.

Decision Date10 December 2010
Docket NumberCASE NO. 3: 10-CV-26-WKW [WO]
CourtU.S. District Court — Middle District of Alabama
PartiesMALLORY & EVANS CONTRACTORS AND ENGINEERS, LLC, Plaintiff, v. TUSKEGEE UNIVERSITY, Defendant.
MEMORANDUM OPINION AND ORDER

Plaintiff Mallory & Evans Contractors and Engineers, LLC ("M&E") brings this breach of contract and unjust enrichment action against Tuskegee University ("Tuskegee" or "University" or "Defendant"). (Compl. (Doc. # 1).) This cause is before the court on Defendant's Motion for Summary Judgment (Doc. # 26), which has been fully briefed and is ready for adjudication. Upon careful consideration of counsel's arguments, the relevant law, and the record as a whole, the court finds that Defendant's motion is due to be granted.

I. JURISDICTION AND VENUE

Subject matter jurisdiction in this case is exercised pursuant to 28 U. S. C. § 1332. The parties do not contest personal jurisdiction or venue, and there are allegations sufficient to support both.

II. STANDARD OF REVIEW

"Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. '" Greenbergv. BellSouth Telecomms., Inc., 498 F. 3d 1258, 1263 (11th Cir. 2007) (per curiam) (quoting former Fed. R. Civ. P. 56(c)). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U. S. 317, 323 (1986). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-24.

If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its claims for relief exists. Fed. R. Civ. P. 56(e)(2); Celotex Corp., 477 U. S. at 324; Clark v. Coats & Clark, Inc., 929 F. 2d 604, 608 (11th Cir. 1991). What is material is determined by the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 248 (1986). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F. 3d 1234, 1243 (11th Cir. 2003) (per curiam) (internal quotation marks and citation omitted).

A genuine issue of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F. 3d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F. 3d 1275, 1279 (11th Cir. 2001). However, if the evidence on which the nonmoving party relies "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U. S. at 249-50 (citations omitted). "A mere 'scintilla' of evidence supporting the [nonmovant's] position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party," Walker v. Darby, 911 F. 2d 1573, 1577 (11th Cir. 1990), and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts, "Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U. S. 574, 586 (1986). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine issue of material fact and do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F. 3d 1555, 1564 n. 6 (11th Cir. 1997) (per curiam). Hence, when a plaintiff fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to his case and on which the plaintiff will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex Corp., 477 U. S. at 323.

On summary judgment, the facts must be viewed in the light most favorable to the non-movant. See Lee v. Ferraro, 284 F. 3d 1188, 1190 (11th Cir. 2002). Hence, "'facts, as accepted at the summary judgment stage of the proceedings, may not be the actual facts of the case. '" Id. (quoting Priester v. City of Riviera Beach, 208 F. 3d 919, 925 n. 3 (11th Cir. 2000)).

III. FACTUAL AND PROCEDURAL BACKGROUND

The evidence, construed in the light most favorable to M&E, establishes the following facts:

M&E and Tuskegee University first developed a business relationship in 2008, when M&E worked as a subcontractor on a project pertaining to heating, ventilating, and air conditioning ("HVAC") and other related renovations at Tuskegee's campus in Tuskegee, Alabama. (Def. 's Br. in Support 4 (Doc. # 26, Attach. 1).) Apparently pleased with the work, Tuskegee discussed with M&E the potential of M&E performing further renovations on several of Tuskegee's dorms, with M&E serving as the prime contractor. (Def. 's Br. in Support 4.)

After several rounds of negotiations, M&E submitted a letter to Tuskegee dated March 25, 2009 ("March 25th Proposal"). (Doc. # 31, Ex. 1A.) The letter provided a "lump sum design-build proposal for the HVAC Improvements at the Russell, Banneker, Bethune, Younge, Drew Hall, Lewis Adams and Olivia Davidson Buildings located at Tuskegee University." (March 25th Proposal, at 1.) The letter continued by listing a more detailed scope of work for each building. For Younge and Drew Halls specifically, the March 25th Proposal stated that "the HVAC services for both are derived from the services in the Bethune Hall Mechanical Rooms and will be affected by the changes there." (March 25th Proposal, at 5.) It further recited that Younge Hall and Drew Hall would receive "[modifications to the existing Hydronic Heating Water system" and that Drew Hall would receive "[modifications to the existing Domestic Hot Water Heater system." (March 25th Proposal, at 5.) The March 25th Proposal, under a separate sub-heading, also enumerated certain work that was excluded from the cost of the contract. Under this section, there was no provision which excluded from the lump sum any additional costs incurred by M&E on account of unforeseen contingencies.

The parties eventually reached an agreement based upon the March 25th Proposal. Tuskegee issued a Notice to Proceed Letter, signed by Cliff Wesson, Tuskegee's Construction Manager, and by Joseph James, Tuskegee's Purchasing Director, on April 2, 2009, and by Tim Sidwell on behalf of M&E on April 3, 2009 ("Notice to Proceed"). (Doc. # 26, Ex. 1C.) More than a month later, on May 13, 2009, Tuskegee issued Purchase Order # 9262857 ("Purchase Order"). (Doc. # 26, Ex. 3B.) Despite the unexplained interval of time between the Notice to Proceed and the Purchase Order, it is undisputed that these three documents are the constituent parts of the agreement between the parties.

The parties contemplated a fixed price contract. (Porter Dep. 109 (Doc. # 26, Ex. 5).) Important to this action, Item Six of the Purchase Order states: "Prior approval must be granted by the Purchasing Department if total exceeds amount listed." (Purchase Order.) Tuskegee maintains that the Purchasing Department may only approve an increase in the contract amount if the president of the University authorized it. (Payton Aff. 3 (Doc. # 26, Ex. 2).) The "amount listed," which is reflected in all three documents, is $3,850, 535. 00, and neither party disputes that this was the original amount agreed upon. 1 (Pl. 's Resp. 4 (Doc. # 32); Def. 's Br. in Support 6.)

Sometime in April 2009, shortly after the Notice to Proceed was signed, M&E "was directed to proceed with work in the central plant, i. e. the chilled water plant." (Pl. 's Resp. 4.) Mr. Sidwell testified: "Every week as we went into the central plant, we found more and more equipment that was not operational; and as we found equipment that was not operational, Cliff Wesson asked us to fix or repair that equipment on a weekly basis." (Sidwell Dep. 133 (Doc. # 31, Ex. 2).) M&E was also forced to make significant design changes. In order to accommodate these changes, M&E "add[ed] necessary equipment in Drew and Younge halls." (Pl. 's Resp. 4.) None of these repairs or changes was included in the original scope of work set forth in the March 25th Proposal. (Pl. 's Resp. 4.) Rather, the repairs and changes were added by proposed change orders. 2 The parties dispute whether the contract was effectively modified in light of these proposed change orders, all of which eventually caused the total amount of the work to exceed $3,850, 535. 00.

When a proposed change order exceeds the original contract amount at Tuskegee, there is a recognized approval process. (Porter Dep. 110-11 (Doc. # 26, Ex. 5).) First, the proposed change order is discussed between the contractor and Mr. Wesson, in his capacity as Construction Manager. (Porter Dep. 110-11.) Mr. Wesson then submits a "change order request" to the Purchasing Department, which makes a determination of whether there are available funds. (Porter Dep. 110-11.) The Purchasing Director then presents the proposed change order to the budget director, who forwards it to the vice president for business and fiscal affairs, Mr. Leslie Porter, who passes it along to the President, Dr. Benjamin M. Payton. (Porter Dep. 110-11.) In this fashion, the president reviews the proposed change order and directs the Purchasing Department to reject or approve it. M&E does not dispute this process.

The original costs for these four proposed change orders were low...

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