Stauffer Const. Co., Inc. v. Board of Educ. of Montgomery County

• Decision Date: 10 May 1983
• Docket Number: No. 1311,1311
• Citation: 460 A.2d 609,54 Md.App. 658
• Parties: STAUFFER CONSTRUCTION COMPANY, INC. v. BOARD OF EDUCATION OF MONTGOMERY COUNTY.
• Court: Court of Special Appeals of Maryland

Page 658

54 Md.App. 658

460 A.2d 609

STAUFFER CONSTRUCTION COMPANY, INC. v. BOARD OF EDUCATION OF MONTGOMERY COUNTY.

No. 1311.

Court of Special Appeals of Maryland.

May 10, 1983.

Francis J. Pelland, Silver Spring, with whom were Sadur & Pelland, Chartered, Silver Spring, on the brief, for appellant.

Roger W. Titus, Rockville, with whom were Titus & Glasgow, Rockville, on the brief, for appellee.

Argued before LOWE, WILNER and ALPERT, JJ.

WILNER, Judge.

On September 20, 1976, the parties entered into a construction contract under which appellant was to do certain rehabilitation and renovation work at the Bethesda-Chevy Chase High School complex. They are now embroiled in a dispute over that contract, which appellant sought to have arbitrated. Upon motion of appellee, however, the Circuit Court for Montgomery County stayed the arbitration proceeding, concluding, on summary judgment, that appellant had waived its right to arbitration by failing to present its claims to the architect in a proper and timely fashion.

We are asked in this appeal whether:

(1) The court had the authority to make that determination;

(2) It should, in any event, have made it upon summary judgment; and

(3) By failing to print a proper appendix or record extract, appellant has forfeited its right to appeal the circuit court judgment.

The first two questions are obviously related, and we shall consider them together. But we shall turn our attention initially to the third issue.

Motion To Dismiss

This is appellant's third attempt to perfect an appeal in this case, ¹ and once again it is faced with a motion to dismiss. This time, appellee complains of appellant's failure to print some seven pounds of documents as part of its appendix. With great force, and with real or feigned dismay, it tells us that, absent these 135 pages of documents (which, we are advised would have cost about $3,000 to print), we shall be unable to address properly the issues raised by appellant. Considering that appellee has seen fit to print only two of those documents in its own appendix and that it has managed quite well to respond fully to appellant's arguments without reference to the other 133 pages of documents, we think that its complaint, though having a partly legitimate basis, is a bit overstated.

We shall deny the motion to dismiss. In so doing, we do not mean to suggest that appellant's appendix is entirely adequate; it is not. At the very least, appellee's amended petitions for stay of arbitration and its motion for summary judgment should have been printed, as well as those portions of the record that appellant itself has found necessary to refer to (improperly) in its brief. We think, however, that such of the record as is printed in the two appendices suffices to permit us to adjudicate the issues raised by appellant, and that, in the interest of justice, we ought to do so.

Background

The contract called for the work to be undertaken and completed in designated stages, with final completion by August 1, 1978, after which liquidated damages at the rate of $100 a day were specified. The total contract price was $4,044,910.

Attached to the contract, and forming a part of it, was AIA Document A201, General Conditions of the Contract for Construction. Four provisions, or categories of provisions, in those general conditions are relevant here: Article 2, describing the function and authority of the architect; § 8.3, dealing with delays and extensions of time; article 12, concerning changes in the work; and § 7.10, providing for arbitration of disputes. We shall return to these provisions shortly.

Appellant did not complete the work within the time set by the contract. On November 27, 1979, some fifteen months after the August, 1978, deadline, appellee declared a default. It terminated the contract and called upon appellant's surety to complete the work in accordance with its bond. The surety took over the job, but, with appellee's consent, arranged for appellant to continue the actual work. Under this new arrangement, appellant remained on the job, working for the surety, until April 17, 1980, when, for whatever reason, its connection with the job was fully and finally terminated by the surety.

On May 12, 1980, appellant filed a demand for arbitration. The relevant part of its dispute with appellee was defined as follows:

"As a result of changes in the work directed by the respondent, design deficiencies, owner-directed alterations in the specified sequence of work and other delays and interruptions caused by the owner, the claimant incurred substantial additional costs of performance, including extra work and delay and impact costs, and became entitled to extensions of contract time equal to its progress on the work. Notwithstanding these circumstances, the respondent default terminated the claimant [sic ] on November 27, 1979, at which time claimant was 99.6% complete and was on the job working towards final completion. Although the default termination was without justification and claimant protested same, the respondent called upon claimant's performance bond surety to complete the remaining work."

As relief, appellant sought $235,499 allegedly due under the contract plus $547,852 for "additional delay and impact costs." It sought as well an adjudication that "the default termination was without justification under the contract," that it is not responsible for any additional costs incurred by the surety over what it reasonably would have cost appellant to complete the work, and that appellee is not entitled to assess liquidated damages.

Appellee responded to this demand with a petition in the Circuit Court for Montgomery County seeking to stay the arbitration proceeding. In its initial petition, filed June 6, 1980, appellee raised three defenses to the arbitration: (1) that appellant's demand for arbitration was not timely filed; (2) that appellant was not entitled to arbitrate its claim for the balance of the contract price where it had been removed from the job and did not perform the work upon which the claim is based; and (3) that any dispute over completion costs incurred by the surety is not within the scope of the arbitration agreement. By subsequent amendments to its petition, appellee added two more defenses: that appellant waived its right to arbitration by filing a lawsuit against appellee; ² and that "the claims which are the subject of the demand for arbitration were not presented to [appellee] or its architect within the time required by the agreement between the parties."

After extensive discovery, each party filed a motion for summary judgment. In addition to the various depositions and answers to interrogatories (and exhibits thereto), there were before the court two affidavits of Dr. H. Philip Rohr, on behalf of appellee, and the affidavit of Bruce E. Stauffer, president of appellant, on behalf of appellant. The major thrust of the Stauffer affidavit was that, by their course of conduct, the parties in effect had ignored, and thus waived, the requirements that claims be submitted to and ruled upon by the architect. Cf. Southern Md. Hosp. v. Edw. M. Crough, Inc., 48 Md.App. 401, 427 A.2d 1051, cert. den. 290 Md. 721 (1981).

On September 9, 1981, the court granted appellee's motion on the narrow issue of whether appellant "compl[ied], substantially, with the time provisions of the contract pertaining to presentment of claims." It concluded that appellant had "totally failed to meet the time restrictions agreed to by the parties in A201 Paragraphs 8.3.1 and 8.3.2." (Emphasis supplied.)

That was the sole stated basis for the court's decision, upon which judgment staying the arbitration was ultimately entered. The other defenses raised by appellee--in particular the timeliness of the demand for arbitration as opposed to the timeliness of appellant's presentment of its claim to the architect and the effect of the "protective" lawsuit filed by appellant--were not discussed or ruled upon by the court. Nor did the court address the arbitrability of appellant's claims that the default termination was without justification, that it was entitled to the unpaid balance of the contract price, that it was not liable for the increased costs incurred by the surety, and that it was not liable for liquidated damages. Finally, with respect to the claims for additional compensation due to extra work or delays caused by appellee, the court omitted any mention of the asserted failure of appellant to comply with the requirements of articles 2 and 12 of the general conditions.

Discussion

Appellant presents a number of arguments in this appeal as to why the court erred, one of which has merit. Although it may have been possible for the court to determine whether arbitration should be stayed by addressing and resolving the effect of (1) any delay in demanding the arbitration (§ 7.10), or (2) any failure by appellant to make a timely presentation of its claims to the architect under article 2 (authority of architect), or (3) the lawsuit filed by appellant, it was not inappropriate for the court, on summary judgment, to stay arbitration proceedings by virtue of noncompliance with § 8.3 (extensions of time).

Md.Code Ann.Courts art., § 3-206(a) provides that a written agreement to submit to arbitration any controversy arising between the parties in the future is valid and enforceable. When such an agreement exists, or is alleged to exist, the courts are generally enjoined by the statute from interfering with the arbitration process. Indeed, the court's jurisdiction may properly be invoked in but two limited contexts--to compel arbitration or to stay it.

Under § 3-207, if a party to the alleged agreement refuses to submit to arbitration, the party demanding the arbitration may petition the court to enforce the agreement by ordering the arbitration. The only issue in such a proceeding is whether the alleged agreement to arbitrate...