US FOR USE OF LAS VEGAS BLDG. MATER. INC. v. Bernadot
| Decision Date | 24 April 1989 |
| Docket Number | No. CV-S-87-858 PMP (LRL).,CV-S-87-858 PMP (LRL). |
| Citation | 719 F. Supp. 936 |
| Parties | UNITED STATES of America, for the Use of LAS VEGAS BUILDING MATERIALS, INC., a Nevada corporation, Plaintiff, v. George BERNADOT, individually; George Bernadot dba George Bernadot Construction; George Bernadot dba George Bernadot Company; and Amwest Surety Insurance Company, Defendants. |
| Court | U.S. District Court — District of Nevada |
J. Douglas Deaner and Susan Williams Scann, Deaner, Deaner & Scann, Las Vegas, Nev., for plaintiff.
L. Ralph Denton and Joseph A. Lopez, IV, Denton & Denton, Las Vegas, Nev., for Bernadot.
Dana Jonathon Nitz, Rawlings, Olson & Cannon, Las Vegas, Nev., for Amwest.
On November 24, 1987, Plaintiff, United States of America, for the use of Las Vegas Building Materials, Inc., a Nevada corporation, filed a Complaint (# 1) to recover the sum of $20,682.00 due and owing for concrete supplied by Plaintiff to Defendant.
On January 27, 1989, Defendants George Bernadot, individually, George Bernadot dba George Bernadot Construction, and George Bernadot Company (hereinafter Bernadot), filed a Motion for Summary Judgment (# 21), and Defendant, Amwest Surety Insurance Company (hereinafter Amwest), filed on January 30, 1989 a Joinder to Defendant Bernadot's Motion for Summary Judgment (# 22).
Plaintiff filed an Opposition (# 23) on February 10, 1989 and Supplemental Points and Authorities in Opposition to Motion for Summary Judgment (# 24) on February 22, 1989. Defendant Bernadot filed Replies (# 25 and # 27) on March 1, 1989 and March 17, 1989 respectively, and Defendant Amwest filed a Joinder (# 26) on March 7, 1989. The parties have not requested oral argument and the Court finds oral argument is not necessary to resolve the Motion before it.
In March 1987, Defendant Bernadot and Clark County, Nevada entered into a contract requiring for Defendant Bernadot to construct a concrete tarmac for an airline terminal at McCarran International Airport. In formulating his bid, Defendant Bernadot received and accepted a bid from Plaintiff to supply Defendant Bernadot with concrete and a concrete accelerator at $44.00/cubic yard and $6.00/cubic yard respectively. Plaintiff ultimately delivered to Defendant Bernadot 2,015 cubic yards of concrete which, according to a June 23, 1987 statement issued to Defendant by Plaintiff, totalled $105,850.00.
However, only 1,877 cubic yards of concrete and 430 cubic yards of concrete accelerator were ultimately used by Defendant Bernadot. In a letter dated July 13, 1987, Defendant Bernadot informed Plaintiff that, due to the delivery of an unacceptable quantity of cement, only the aforementioned yards of concrete and concrete accelerator were utilized and that, in light of their agreement, Defendant was obligated to pay Plaintiff $85,168.00. On July 15, 1987, Defendant tendered Plaintiff a check for the aforementioned amount which contained language on its front and back providing, in essence, that the amount forwarded was in full satisfaction of Plaintiff's claim. Subsequently, Plaintiff, after having stricken the referenced language, endorsed and deposited the check and received payment for the amount thereon.
In his Complaint, Plaintiff seeks recovery of $20,682.00, which is the difference between Plaintiff's original claim of $105,850.00 and the amount of the tendered check, together with interest and attorney's fees. In his Motion for Summary Judgment, Defendant argues that the restrictive language contained on the front and back of the tendered check indicate that the instrument was offered in full satisfaction of Plaintiff's claim and that the facts evidence an accord and satisfaction.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Summary Judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party moving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir.1982). However, this does not require that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
Once the movant's burden is met by presenting evidence which, if uncontroverted, would entitle the movant to a directed verdict at trial, the burden then shifts to the non-movant to set forth specific facts demonstrating that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Richards v. Neilsen Freight Lines, 810 F.2d 898 (9th Cir.1987).
"A `material' fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit." T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir.1987). All facts and inferences drawn must be viewed in the light most favorable to the non-moving party, when determining whether a genuine issue of material fact exists for summary judgment purposes. Poller v. CBS, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); State of Idaho v. Hodel, 814 F.2d 1288 (9th Cir.1987).
A valid accord requires an offer, acceptance, and consideration. Air Van Lines, Inc. v. Buster, 673 P.2d 774 (Alaska 1983). For there to be an offer of an accord the offer must clearly indicate that the offeror seeks a total discharge, otherwise any such offer accepted merely constitutes a partial payment. Pincus-Litman Co., Inc. v. Canon U.S.A., Inc., 98 A.D.2d 681, 469 N.Y.S.2d 756 (1st Dep't 1983); Scantlin v. Superior Homes, Inc., 6 Kan. App.2d 144, 627 P.2d 825 (1981).
It is generally held that the cashing of a check amounts to an acceptance of an offer of an accord. Teledyne Mid-America Corporation v. HOH Corporation, 486 F.2d 987 (9th Cir.1973); Mobil Oil Corp. v. Prive, 137 Vt. 370, 406 A.2d 400 (1979); See Hall v. Time Ins. Co., 854 F.2d 440 (11th Cir.1988). However, acceptance is effective only when the recipient of the check has been informed that the claim will be settled or discharged for the amount offered. Rhone v. State Auto Mut. Ins. Co., 858 F.2d 1507 (11th Cir.1988); Hagerman v. Yukon Energy Corporation, 839 F.2d 407 (8th Cir.1988).
In addition, a good faith dispute regarding the amount owed must exist between the parties for the principles of accord and satisfaction to apply. Limbaugh v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 732 F.2d 859 (11th Cir.1984); Guy James Const. Co. v. Trinity Industries, Inc., 644 F.2d 525 (5th Cir.1981), modified 650 F.2d 93; HOH Corp., supra.
The principles of accord and satisfaction apply even though the creditor has erased or obliterated the words creating the offer of the accord. Lowrance v. Hacker, 866 F.2d 950 (7th Cir.1989); Rhone, supra.
In the case sub judice, the record clearly indicates that there was an offer and an acceptance of an accord, as well as a good faith dispute between the litigants. The language contained on the back of the check tendered by Defendant Bernadot to Plaintiff constituted an offer of an accord. Specifically, the language provided:
Any indorsement, negotiation and/or presentment for payment of this instrument shall constitute a waiver and release by the payee of all claims against the payor for any further payment in connection with C B 4 Ramp Expansion. Contract # 552.
Moreover, on the upper left hand corner on the front of the check the following language appears:
YOUR ENDORSEMENT ON THIS CHECK ACKNOWLEDGES PAYMENT ON THE FOLLOWING ACCOUNT(S)
Beneath this statement appeared the account at issue:
Instead of returning the check, Defendant crossed out the above language, endorsed and deposited the check, and then received payment of $85,168.00. Thus, the evidence, in light of the aforementioned legal principles, unambiguously indicates that there was both an offer of an accord as well as an acceptance by Plaintiff.
Plaintiff, however, claims that there was no bona fide dispute between the litigants. Instead, Plaintiff insists that the actual dispute exists between Defendants and Clark County. Specifically, Plaintiff claims that Defendant Bernadot's misplacement of the materials already delivered to Defendant by Plaintiff and Defendant's failure to satisfy Clark County guidelines with respect to such placement and finish resulted in that concrete not being used.
It is from these events, Plaintiff contends, that Defendants insist that they are under no obligation to recompense Plaintiff. Given Defendant's alleged mistake, Plaintiff argues that Defendant...
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