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No. 00-1763
COUNSEL
ARGUED: Timothy
PLOTKIN & KAHN,
tin Joseph Jaron, Jr.,
D.C., for Appellees.
OPINION
PER CURIAM:
This case involves a dispute over a construction contract between
Plaintiff-Appellant Jeffrey M. Brown Associates, Incorporated
("JMB"), and Defendants-Appellees Rockville Center, Incorporated
("RCI") and Pavilion Partners, Incorporated ("PPI"). The district court
dismissed JMBs amended complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6), and JMB appeals. For the reasons discussed
below, we affirm.
I.
JMB is a general contractor that designs and builds construction projects.1 In 1997, it entered into a "fast track" contract (the "Contract")
with RCI, to design and build a retail pavilion and theater on land RCI
owned in Rockville, Maryland. RCI later conveyed the land to PPI.
Under the Contract, JMB was to be paid its actual cost and a 5.1%
fee, not to exceed a Guaranteed Maximum Price ("GMP"). The Contract provided that "time was of the essence," (J.A. at 455), because
the defendants had to meet an occupancy schedule for their incoming
tenants. (See J.A. at 467.)
Work began in January 1997. JMB completed enough work on the
1
The facts are taken from the amended complaint and from the exhibits
attached to it, or to which it refers and relies upon. (See Part II.A, note
2, and the text accompanying note 2, infra.)
tial" or "Final" Completion by November 16. JMBs principal argument on appeal is that it sufficiently alleged it achieved "Substantial
Completion" by November 16, and thus, should have been paid the
escrowed funds.
We find JMBs argument unpersuasive. The dispositive inquiry is
not whether JMB sufficiently alleged it achieved "Substantial" Completion, but whether it sufficiently alleged it achieved "Final" Completion. To achieve "Final" Completion, JMB was contractually
required to obtain a "final" certificate of occupancy by November 16.
(See J.A. at 346, 348.) JMB admitted in its amended complaint that
it did not obtain a final certificate of occupancy by November 16.
(See Am. Compl. 24, J.A. at 424-25.) Therefore, under JMBs own
allegations, as supplemented by the documents it attached to the complaint, JMB did not achieve Final Completion.3
JMB alleges it failed to achieve Final Completion only because the
defendants expanded the scope of work contemplated by the Settlement Agreement, and that, as a result, "[t]ime extensions per the Contract and the [Settlement] Agreement would change the actual dates
for the milestones planned for November 1 and November 16." (Am.
Compl. 16, J.A. at 422.) Because the latter proposition is a legal
conclusion that is contradicted by the contracts sub judice, we do not
accept it as true. The Settlement Agreement contains no provisions by
which time could be extended, apart from the "cure" period provision,
which period ended on November 16, 1999. The original Contract
contains only one provision expressly governing extensions of time.
That provision states that if "changes ordered in the Work" caused
JMB to be delayed, time limits could be extended "by Change Order."
(J.A. at 455-56.) A Change Order was defined as "a written instrument prepared by [JMB] and signed by [JMB and the defendants],
stating their agreement upon . . . the extent of the adjustment, if any,
in the Contract Time." (J.A. at 459.) Assuming arguendo that the time
extension provision of the original Contract survived the amendment,
JMB did not allege in its amended complaint or in its briefs that it
obtained a Change Order to which the parties had agreed. Because the
only means by which time could be extended under the time exten3
Counsel for JMB conceded this point at oral argument when he said
there is "no question we werent finally complete."
The Deficiency List indicates the curtain wall deficiencies were in the
east wing of the retail pavilion.
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JMB and to take back the escrowed funds. Accordingly, the district
court properly found that JMB failed to state a claim for breach of
contract.
D.
Next JMB argues that the district court erred in dismissing its
declaratory judgment claim. By this claim, JMB seeks a declaration
that, to the extent the Settlement Agreement provides that JMB forfeited the escrowed funds and its claims against JMBs designers and
subcontractors, such forfeitures are unlawful penalties, contrary to the
public policy of Maryland, and hence, unenforceable.
As part of the settlement of the parties disputes, including settlement of the defendants arbitration claims against JMB, JMB agreed
to a vast release provision. In relevant part, it states:
Except for claims that RCI or PPI have breached their
payment obligations as set forth [herein] . . . JMB . . . does
hereby release and forever discharge [the defendants] . . .
from any and all claims, demands, debts, dues, damages,
causes of actions, liabilities, losses, suits, fees (including
attorneys fees), costs, accounts, bonds, bills, covenants,
contracts, controversies, agreements, promises, variances,
damages, judgments, executions, mechanics or materialmens liens, claims and demands whatsoever, whether
known or unknown, arising in law or equity, of whatever
nature (whether in contract, quasi-contract, tort or otherwise), that JMB . . . [has], had, may have had or may have
in the future by reason of any facts, known or unknown . . .
which in any way relate to or arise from the Contract, as
amended, the Property and/or the Project.
(J.A. at 363.)
In Maryland, releases are construed according to traditional contract principles. See Bernstein v. Kapneck, 430 A.2d 602, 606 (Md.
1981). A release evidencing a settlement, like the release in this case,
"is a jural act of exhalted [sic] significance which without binding
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