Mass Transit Admin. v. Granite Const. Co.
| Decision Date | 06 March 1984 |
| Docket Number | No. 554,554 |
| Citation | 57 Md.App. 766,471 A.2d 1121 |
| Parties | MASS TRANSIT ADMINISTRATION v. GRANITE CONSTRUCTION COMPANY. Sept. Term 1983. |
| Court | Court of Special Appeals of Maryland |
Robert M. Fitzgerald, Vienna, Va., with whom were Geoffrey T. Keating, Andrew D. Ness, Patricia A. Benzinger and Lewis, Mitchell & Moore, Vienna, Va., on brief, for appellee.
Argued before BISHOP, BLOOM and BELL, JJ.
The Circuit Court for Baltimore City reversed a decision of the Maryland State Board of Contract Appeals (the Board) that had denied a claim of Granite Construction Company (Granite) for additional compensation arising out of a subway construction contract between Granite and the Mass Transit Administration (MTA).
The Board had held that the contract unambiguously required Granite to perform the work (gas line relocation) for which Granite was claiming additional compensation and that a provision in the contract prohibiting reliance upon oral explanations should be enforced literally. Granite filed a motion for reconsideration in which, for the first time, it urged that the doctrine of unjust enrichment should be applied. MTA responded with arguments that unjust enrichment had not been raised in a timely fashion, that it was barred by the doctrine of sovereign immunity, and that it is inapplicable where the entire subject matter is covered by an express contract. The Board denied the motion for reconsideration on the ground that the issue of unjust enrichment was not timely raised. Granite then asked the Board to reconsider its denial of the motion for reconsideration. The Board decided to consider the unjust enrichment Granite appealed to the Baltimore City Court (now the Circuit Court for Baltimore City). The court agreed with the Board's original finding that the contract required Granite to perform the gas line relocation work but held that the doctrine of unjust enrichment did apply under the facts of the case. The court remanded the case to the Board to determine the worth of the gas line relocation work to MTA and to determine the applicability of the doctrine of sovereign immunity to an unjust enrichment claim.
claim and then ruled that the existence of an express contract precluded the application of the doctrine of unjust enrichment.
In this appeal from that order of the circuit court, MTA raises the following questions:
1. Does sovereign immunity bar an unjust enrichment action?
2. Is unjust enrichment barred by the principle that where there is an express contract there can be no implied contract on the same subject matter?
3. Does the clean hands doctrine preclude recovery for unjust enrichment?
4. Can unjust enrichment recovery be granted where there is an adequate remedy at law?
5. Did the Board of Contract Appeals err in reversing its decision of November 25, 1981, and deciding to consider the merits of the unjust enrichment argument?
We need not answer all of those questions. Our review of the facts persuades us that MTA was not unjustly enriched; and an analysis of the parties' arguments pertaining to the doctrine of sovereign immunity and the principle of unjust enrichment leads us to conclude that, in this case at least, the two concepts are sufficiently incompatible to bar recovery by Granite. In order to steer a course safely past Scylla (the State's waiver of sovereign immunity is limited to claims based on written contracts), appellee would have to sail into the maws of Charybdis (the principle that unjust enrichment does not apply if there is a written contract).
In November 1977 MTA issued an invitation for bids on a contract to construct the Laurens Street Station, a segment of the Baltimore Region Rapid Transit System. During the bidding period, Roy Vaught, Granite's lead estimator, noted what appeared to him to be an ambiguity in the contract drawings. On sheet 89 of the contract drawings there was a notation that the required relocation of gas lines as shown thereon would be done by Baltimore Gas and Electric Company (BG & E). The question in Mr. Vaught's mind was whether that notation applied only to the gas line relocation work shown on sheet 89 or to all required gas line relocation work that appeared on sheets 89 through 95 of the contract drawings.
For an answer to his question, Mr. Vaught telephoned Murray Weiner, MTA Project Engineer for the design of the Laurens Street project. The names and telephone numbers of Mr. Weiner and a Mr. R. Hampton were listed in the "Notice to Contractors" included in the contract documents supplied to bidders with the notation that "Questions Regarding the Work" should be directed to those individuals by mail or telephone. Weiner told Vaught that he did not know the answer to Vaught's question as to responsibility for gas line relocation but would get the appropriate person in touch with Vaught to provide an answer. Weiner tried to telephone the Project Engineer for MTA's general consultant and then MTA's own utility engineer, but neither of them could be reached at that time. He then called Granite and told Vaught that the two people who he would normally contact with that sort of question were not immediately available, but one of them would telephone Vaught with the answer to his question. Vaught protested that the deadline for submitting bids was fast approaching and requested an answer from Weiner. Although Weiner insisted he was not familiar with the utility drawings, Vaught pressed him to answer the question to the best of his ability. Weiner looked at the drawings for a few minutes and then, after reiterating that he was not the proper expert to interpret Based on Weiner's opinion that BG & E would do all of the gas line relocation work, Vaught estimated the work required to support the gas lines in the areas of the station and a vent shaft, which work was consistent with the notation on drawing sheet 89 and with the answer Weiner had given him. He then inserted those amounts in the overall estimate for the Laurens Street contract. The bid submitted by Granite shows that $12,800 was allocated to the gas facilities work, Items 82 and 87; whereas MTA estimated those two items at $127,800 and other bidders had assigned as much as $270,000 to Item 87 alone.
the drawings, expressed to Vaught his opinion that the plans called for BG & E to do all the gas line relocation work.
When the bids were opened on January 31, 1978, Granite's bid of $36,283,000 was found to be the lowest bid; 1 and the contract was awarded to Granite. On April 5, 1978, there was a meeting among representatives of MTA's construction manager, BG & E and Granite, as a result of which Granite clearly became aware that it was required to do the gas line relocation work despite the fact that it had included no money in its bid for such work. The members of Granite's field staff who attended that meeting as well as its officer who signed the contract with MTA were unaware of Vaught's prior conversations with Weiner and apparently assumed that the failure to include money for the gas line relocation in the bid was either an oversight or a tactical decision.
After the work was done, Granite's field staff learned of the pre-bid telephone conversations between Vaught and Weiner, whereupon Granite submitted its claim for additional compensation in accordance with the administrative review procedures set forth in the contract, which included the right of appeal to the Maryland Department of Transportation Board of Contract Appeals.
"The doctrine of sovereign immunity from suit, rooted in the ancient common law, is firmly embedded in the laws of Maryland." Katz v. Wash. Suburban Sanitary Comm'n, 284 Md. 503, 507, 397 A.2d 1027 (1979); Austin v. City of Baltimore, 286 Md. 51, 53, 405 A.2d 255 (1979). "If an action is brought for a money judgment in contract or in tort against the State or an agency of the State without the State's consent, actual or implied, it must be defended on the ground of sovereign immunity, which cannot be waived unless funds have been appropriated for the purpose or the agency can provide funds by taxation...." American Structures v. City of Baltimore, 278 Md. 356, 359, 364 A.2d 55 (1976) (citations omitted).
The defense of sovereign immunity was abrogated in Maryland by Chapter 53 of the Laws of 1786 but reinstated by Chapter 210 of the Laws of 1820. See Calvert Associates v. Dept. of Employment and Social Services, 277 Md. 372, 376, 357 A.2d 839 (1976). It has since been partially abrogated or waived. Chapter 450 of the Laws of 1976, originally codified as art. 41, § 10A of the Annotated Code of Maryland, subsequently recodified as Md.Ann.Code art. 21, §§ 7-101 through 7-104, prohibits the State and its officers, departments, agencies, boards, commissions or other units of State government from raising the defense of sovereign immunity in the courts of this State "in an action in contract based upon a written contract executed on behalf of the State, or its department, agency, board, commission or unit by an official or employee acting within the scope of his authority." 2
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