2300 Pennsylvania Avenue, LLC v. Harkins Builders, Inc., 4th Cir. (2013)
2300 Pennsylvania Avenue, LLC v. Harkins Builders, Inc., 4th Cir. (2013)
2300 Pennsylvania Avenue, LLC v. Harkins Builders, Inc., 4th Cir. (2013)
No. 12-1346
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Liam OGrady, District
Judge. (1:10-cv-01321-LO-IDD)
Argued:
Decided:
March 4, 2013
PER CURIAM:
against
fraud,
2300
Pennsylvania
Harkins
Builders,
and
negligence
construction
of
Avenue,
Inc.,
brought
alleging
arising
building
LLC,
out
project
of
in
breach
a
this
of
contract,
contract
Washington,
action
for
D.C.
the
The
entered
judgment
$3,922,189
in
arguments.
We affirm.
for
damages.
2300,
Harkins
in
the
total
appeals,
amount
raising
of
several
I.
In
August
2008,
2300,
as
owner
and
developer,
and
the
construction
of
mixed-use
apartment
and
retail
several
Document
documents,
including
AIA
A101-1997,
the
A.
Relevant to this appeal, the contract requires windows
2
windows,
involved
sealer,
testing
drilling
applying
after
holes,
new
redesigned sashes.
each
remediation.
injecting
sealant
and
foam
These
compound
caulking,
and
efforts
and
seam
installing
leaks
in
the
garage
approximately
the
same
intervals.
Harkins
walls.
height
The
and
in
sub-contractor,
leaks
appeared
pretty
Prospect
at
consistent
Waterproofing
walls
and
denied
responsibility.
Harkins
accepted
several
cement and
rounds
chemical
of
grout
repairs,
in
the
which
leaking
included
areas,
injecting
the
project
2011.
the
approximate
horizontal
waterproofing systems.
water
penetration,
boundary
between
the
two
the
architect
also
determined
that
the
due
to
poor
quality
waterproofing,
improper
Under the
architects
certification
must
be
made
in
its
intended
use.
Substantial
completion
is
to
be
Certificate
of
Occupancy
on
February
March
30,
Harkins
requested
4
payment
25,
2010,
and
A month later,
of
$150,000
9,
which
modified
the
liquidated
damages
and
bonus
architect
attached
to
the
certificate
punch
list
of
execute
the
Certificate
unless
the
Date
of
Substantial
Completion was changed to April 25, 2010, and the punch list
removed.
on October 7, 2010.
B.
On
November
19,
2010,
2300
filed
five-count
that
Harkins
breached
its
and
implied
the
roof,
adhere
to
specified
building
dimensions
documentation
to
2300.
2300
further
alleged
that
Harkins failed to act in good faith and deal fairly with 2300,
and
breached
contract.
its
express
Finally,
and
2300
implied
alleged
warranties
that
Harkins
under
the
negligently
for
the
answered
breach
$510,000
the
of
complaint
contract,
contract
and
alleging
balance
even
asserted
that
2300
though
a
had
Harkins
summary
on
judgment
to
2300
as
to
liability
its
liquidated
denied
judgment.
the
parties
remaining
motions
for
The
summary
opinion and order for judgment to 2300, finding that Harkins had
6
breached
the
contract
waterproofing.
The
with
court
respect
further
to
found
the
that
windows
2300
failed
and
to
which
for
included
$2,683,962
waterproofing
repair
and
for
window
replacement,
maintenance,
$3,500
to
The
court
the
rejected
Harkins
counterclaim
for
recovery
of
II.
After
carefully
considering
the
record,
the
briefs,
and the applicable law, and having the benefit of oral argument
from the parties, we affirm the judgment in favor of 2300 for
the
reasons
opinion.
issues:
was
well-stated
in
the
district
court's
memorandum
entered
orally
from
the
bench;
7
and
the
calculation
of
damages,
which
Harkins
asserts
must
be
remanded
to
address
mathematical errors.
A.
Under
Change
Order
of
the
contract,
Harkins
was
certain
date.
The
parties
cross-motions
for
review
summary
See
Wash.
de
novo
the
judgment
Metro.
district
on
Area
courts
liquidated
Transit
Auth.
v.
award
of
damages
to
Potomac
Inv.
Because this
appeal
apply
invokes
our
diversity
jurisdiction,
we
state
See Gaspirini v.
parties
agree
that
District
judgment
is
appropriate
where
of
Columbia
law
contract
is
parties
would
have
thought
8
the
[contract]
meant.
1010
Potomac Assocs. v. Grocery Mfrs. of Am., Inc., 485 A.2d 199, 205
(D.C. 1984).
and
ascertaining
circumstances
surrounding
the
meaning
in
light
the
parties
at
the
of
time
all
the
[it]
was
made.
(D.C. 2011).
Properly applying District law, the court determined
that the contract unambiguously defines substantial completion.
Pursuant to the contract, [w]hen the Work or designated portion
thereof is substantially complete, the Architect will prepare a
Certificate of Substantial Completion which shall establish the
date of Substantial Completion.
of
certain
achieving
documents
to
substantial
the
architect
completion.
If
is
the
prerequisite
architect
to
notifies
at
designated
the
time
portion
of
substantial
thereof
is
completion,
sufficiently
the
Work
complete
or
in
However, the
advances
reads
the
requirement
of
the
architects
the
district
court
did
not
err
in
granting
partial
Id.
B.
The
remaining
issue
we
address
here
concerns
the
due
mathematical
errors.
Specifically,
Harkins
be
Elegance
proven
Travel,
(D.C. 2001).
with
Inc.
mathematical
v.
Worldspan,
precision.
L.P.,
774
Affordable
A.2d
320,
329
if
it
nonetheless
did
was
just
precisely
and
calculate
reasonable.
total
Further,
damages,
we
reject
review of the record, we agree with 2300 that Harkins waived its
claim
that
the
court
neglected
to
remove
$82,600
in
costs
the award.
III.
For these reasons, and for the reasons stated by the
district
court,
judgment
in
favor
of
2300
in
the
amount
of
$3,922,189 is
AFFIRMED.
11