Opinion
No. 54401-2-I
Filed: April 4, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-2-26166-1. Judgment or order under review. Date filed: 05/14/2004. Judge signing: Hon. Douglas D. McBroom.
Counsel for Appellant(s), Michael H. Ferring, Attorney at Law, Ferring Nelson Llp, 600 Stewart St Ste 1920, Seattle, WA 98101-1238.
Counsel for Respondent(s), Rebecca Boatright, Seattle City Attorneys Office, PO Box 94769, Seattle, WA 98124-4769.
William Gregory McGillin, Seattle City Attorneys Office, PO Box 94769, Seattle, WA 98124-4769.
Biwell Construction, Inc. appeals from a summary judgment order dismissing its claims against the City of Seattle. We affirm as to the delay claim and reverse as to the claim that Biwell has not been paid for its contract work.
On September 21, 2001, Biwell and Seattle entered a contract for work on a police station. The original contract price was $391,182 but the City requested a number of changes and the final contract amount was approximately $545,222. As far as the record before the trial court shows, there does not appear to be any dispute about the changes and the final contract price. Biwell was to start work on October 4, 2001 and finish by January 4, 2002.
The contract provides that if Biwell's performance is delayed, it has five days following the event giving rise to the delay to request an extension of time and 20 days to submit documentation supporting the request and any delay damages. The contract provides that any failure to comply with this procedure constitutes a waiver of delay damages. If such a request is denied, the contract further requires a protest, a claim, and mediation prior to filing suit.
Part of the work involved demolition and Biwell apparently needed a survey to determine whether the demolition work involved any hazardous materials. On November 7, 2001, Biwell submitted a modification proposal requesting a 14 day delay and estimating that it incurred $17,649.67 in additional costs. Biwell explained that it requested a survey on October 2, received it on October 16, and that there was a delay between October 8 and October 22 because of the lack of a survey. The City rejected the modification proposal, explaining that there was a hazardous materials survey available that was provided to Biwell on October 9, that the additional survey, which was performed at Biwell's request, was unnecessary, and that there was no therefore no delay. The City also noted that Biwell had not documented the additional cost estimate.
Biwell proceeded with the contract and completed all but some minor items. The City terminated the contract effective February 28, 2002.
On March 14, 2002, Biwell submitted a revised modification proposal requesting $13,217.89 for the delay attributable to the survey. The City indicated it would not allow the claim without an audit, as allowed by the contract. Biwell has not allowed the audit, apparently because it believes the request is too broad. Biwell and the City discussed mediation but the City has refused to waive its legal defenses and Biwell therefore considers mediation useless.
Biwell filed a complaint on May 16, 2003. The complaint lists two causes of action, one for breach of contract based on the delay, and one for money due under the contract. The latter claim alleges that Biwell is "still owed money for work performed under the contract." In its answer, the City admitted that it still held retainage funds but denied that Biwell was due any additional compensation. Biwell claims it is owed $34,893 under the contract.
Complaint at CP 5.
The City moved for summary judgment, arguing that Biwell failed to comply with the contract's dispute resolution procedures. The trial court initially denied the motion but then granted it on reconsideration. The court concluded that Biwell did not strictly comply with the contract's claim requirements. Biwell has appealed.
We engage in the same inquiry as the trial court when reviewing an order granting summary judgment. Summary judgment is appropriate if the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. We consider the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party.
Okeson v. City of Seattle, 150 Wn.2d 540, 548, 78 P.3d 1279 (2003).
CR 56(c).
Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000).
Biwell does not appear to be challenging the dismissal of its claim for delay. The City contends that this claim is barred because Biwell did not follow the procedure set out in the contract for making such a claim. Biwell does not dispute this and we agree with the City. The contract has specific provisions addressing such claims and it appears to be undisputed that Biwell did not follow them. As to any delay claim, the trial court properly granted summary judgment.
However, the claims for money due under the contract are not so barred. The City contends that Biwell did not properly bring this claim. Although the pleadings suggest that the parties were more focused on the delay claim, the complaint alleges that Biwell is still owed money under the contract and the materials submitted to the trial court make clear both the nature of these claims and the amount claimed. The claim was thus properly before the trial court. The City has not pointed to any dispute resolution provisions, similar to those that bar the delay claim, that would bar this claim.
In its reply to the response to the summary judgment motion, the City asserted that the retainage claim was not properly before the court. CP 126.
The City does contend that all claims are barred because Biwell did not file suit in a timely manner. The contract provides that any claims the contractor wishes to litigate against the City must be brought within 180 days from the completion date and that the failure to bring claims within this period is a complete bar to any cause of action. However, the record does not show that this period ran before Biwell filed suit.
The contract defines the term "completion date" as follows: The date, certified in writing by the Owner, when the Work specified in the Contract Documents is completed and all the obligations of the Contractor under the contract are fulfilled by the Contractor. All documentation required by the Contract and required by law must be furnished by the Contractor before establishment of this date.
CP 184.
The City maintains that the contract was completed when it terminated Biwell's performance on February 28, 2002. While this may be true as a practical matter, the "completion date" is defined in very specific terms. The materials submitted in support of the City's motion for summary judgment do not show that the City has certified a completion date. The architect certified that the project was complete, and the City's project manager indicated in her deposition that there was nothing else that needed to be done before the retainage was paid. But neither of these actions satisfy the definition set out in the contract. Moreover, in another declaration, the City seems to say that it sent a "Notice of Completion of Public Works Contract" to the Department of Revenue on August 15, 2003, a date less than 180 days prior to Biwell's suit. The record therefore does not support the City's contention that it is entitled to judgment as a matter of law on this ground.
CP 80.
CP 111.
The City also seems to contend that Biwell's contract claims are barred because it did not request mediation. But we see nothing in the record that compels the conclusion that Biwell is required to mediate the agreed upon contract price.
We affirm the summary judgment order insofar as it dismisses Biwell's claim for delay damages. We reverse the order insofar as it dismisses Biwell's claim for unpaid contract amounts, and remand for further proceedings.
APPELWICK, ELLINGTON and AGID, JJ.