Afcon, Incorporated v. Bell BCI Company , 64 F. App'x 893 ( 2003 )


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  •                         UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    AFCON, INCORPORATED, an Ohio           
    corporation,
    Plaintiff-Appellant,
    v.                             No. 02-1914
    BELL BCI COMPANY,
    Defendant-Appellee.
    
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    Leonie M. Brinkema, District Judge.
    (CA-02-80-A)
    Argued: May 9, 2003
    Decided: May 27, 2003
    Before NIEMEYER and MOTZ, Circuit Judges, and
    Joseph R. GOODWIN, United States District Judge for the
    Southern District of West Virginia, sitting by designation.
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    ARGUED: Peter Daniel Welin, THOMPSON HINE, L.L.P., Colum-
    bus, Ohio, for Appellant. Richard O’Shea Wolf, MOORE & LEE,
    L.L.P., McLean, Virginia, for Appellee. ON BRIEF: Scott A. Har-
    vey, THOMPSON HINE, L.L.P., Washington, D.C., for Appellant.
    Charlie C.H. Lee, MOORE & LEE, L.L.P., McLean, Virginia, for
    Appellee.
    2                 AFCON, INC. v. BELL BCI COMPANY
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    In this diversity contract dispute, the general contractor on a con-
    struction project, Bell, BCI Company, enlisted the services of Afcon,
    Inc., to do work originally undertaken by another subcontractor. Dis-
    satisfied with the amount received in payment from Bell, Afcon sued
    Bell for breach of contract and unjust enrichment. The district court
    granted summary judgment to Bell. We affirm.
    I.
    In July and August, 1999, Bell entered into two contracts with the
    Alexandria Sanitation Authority of Alexandria, Virginia, to serve as
    the general contractor for improvements to the city’s wastewater
    treatment plant. Shortly thereafter, Bell entered into four written sub-
    contracts with R&R Geo-Construction, Inc. in connection with the
    sanitation contracts. A few months later, R&R informed Bell that it
    could not perform its obligations under the four subcontracts. Shortly
    thereafter, Bell entered into discussions with Afcon.
    On November 15, 1999, Afcon sent a letter to Bell that offered to
    provide the sheeting and shoring work covered by two of the four
    R&R subcontracts and to split profits arising from that work, 30% to
    Bell, 70% to Afcon. On November 23, 1999, Bell responded by send-
    ing Afcon an "Agreement Outline," which states that "[a]s Bell is con-
    sidering entertaining a contract with Afcon for . . . the following must
    be provided and considered prior to agreement;" the list includes vari-
    ous terms such as rates and applicability for per diems, insurance, etc.
    The Agreement Outline also states that "Supplement A previously
    written for each contract will apply in its entirety." "Supplement A"
    was an attachment to the original R&R subcontracts, which contains
    a number of requirements, including that the subcontractor furnish a
    payment and performance bond.
    AFCON, INC. v. BELL BCI COMPANY                     3
    On November 29, 1999, Afcon replied to Bell’s Agreement Out-
    line. Afcon’s response provided various rates and per diem amounts,
    described an insurance arrangement, and stated that "[d]ue to unusual
    circumstances, the contract clauses are to delete any reference to
    Bond, liquidated damages or any punitive damages to Afcon, Inc."
    Bell never responded to the November 29 letter. On December 1,
    1999 Afcon sent two letters to Bell proposing to furnish all labor,
    equipment and materials to install the sheeting and shoring systems
    covered by two of the four R&R subcontracts. Afcon acknowledges
    that Bell never accepted the terms of these letters.
    On January 8, 2000, Afcon wrote still another letter to Bell discuss-
    ing arrangements for performing the piling work covered by the
    remaining two R&R subcontracts. This letter stated that Afcon had
    arranged to work with WM Brode Co. for pile driving, and noted
    "that another local piling contractor has been brought in the picture."
    Afcon concedes that Bell never accepted the January 8th proposal.
    Instead, Bell wrote Afcon that its submission was not in the proper
    format and instructed Afcon to resubmit its bid. Afcon resubmitted its
    proposal, to which Bell did not respond. Sometime thereafter Bell
    entered into a contract with another subcontractor, Midlantic Piling,
    Inc. to perform some of the work covered by the original piling con-
    tracts.
    Beginning sometime on or before November 15, 1999, Afcon per-
    formed sheeting and shoring work on the Project. Afcon sent weekly
    forms entitled "reimbursement" to Bell, detailing labor costs, per
    diem expenses, and overhead expenses incurred in performing this
    work. Bell regularly paid Afcon all of the requested amounts. Afcon
    contends that it also submitted monthly pay requests to Bell "indicat-
    ing percentages of work completed pursuant to a schedule of values
    for the sheeting and shoring work." Afcon further asserts that "these
    pay requests indicated the amount due on a percentage complete basis
    against the total subcontract amounts, less the amount of wage
    advances, expense advances, overhead advances, material expenses
    and equipment charges." However, Afcon did not produce any
    monthly statements substantiating this contention.
    On August 16, 2000, after the sheeting and shoring work had been
    completed, Afcon submitted a final invoice to Bell indicating an
    4                 AFCON, INC. v. BELL BCI COMPANY
    amount due based on the R&R subcontract amounts. Bell refused to
    pay the amount listed on this final invoice.
    On January 15, 2001, Afcon sued Bell, alleging inter alia unjust
    enrichment and breach of contract. The district court granted sum-
    mary judgment to Bell, finding that it had paid Afcon the fair value
    of all services rendered by Afcon and the parties had never agreed
    upon a contract. Afcon timely appealed.
    II.
    Because Bell paid all amounts charged by Afcon for labor costs,
    per diem costs, and overhead expenses in connection with the sheet-
    ing and shoring work Afcon performed, the district court correctly
    held that Afcon’s quantum meruit claim fails.
    Afcon’s contract claim requires a bit more discussion. Afcon con-
    tends that Bell breached a contract to pay it on the same terms as
    Bell’s original contract with R&R. Under Virginia law, which the par-
    ties agree applies here, "[u]ntil the parties have a distinct intention
    common to both and without doubt or difference, there is a lack of
    mutual assent and, therefore, no contract." Persinger & Co. v. Lar-
    rowe, 
    477 S.E.2d 506
    , 509 (Va. 1996). While "the law imputes to a
    person an intention corresponding to the reasonable meaning of his
    words and acts," Marefield Meadows, Inc. v. Lorenz, 
    427 S.E.2d 363
    ,
    365 (Va. 1993) (internal quotation marks and citation omitted), "[i]n
    the absence of circumstances from which an acceptance may be
    implied, an acceptance will not be presumed from a mere failure to
    decline a proposal." Boone v. Standard Accident Ins. Co., 
    66 S.E.2d 530
    , 535 (Va. 1951) (citations omitted); see also Andrews Large &
    Whidden, Inc. v. Capman & Wood, Inc., 
    37 Va. Cir. 251
    , 254-5
    (1996) (citing Boone for same proposition).
    Applying these principles to the facts at hand inevitably leads to
    the conclusion that the parties never entered into a contract. Indeed,
    during his deposition, Atul Gupte, the sole owner of Afcon, admitted
    facts that preclude finding a contract between Bell and Afcon. Gupte
    conceded that as of November 23, Bell and Afcon had not reached an
    agreement on the terms of Afcon’s work. Gupte also admitted that
    Bell never responded to Afcon’s letter of November 29 or accepted
    AFCON, INC. v. BELL BCI COMPANY                    5
    the terms of Afcon’s December 1 letters. Finally, Afcon’s January 8
    letter constitutes an offer, for which there is no evidence of accep-
    tance by Bell. For these reasons, we agree with the district court that
    Afcon has failed to offer any evidence from which a reasonable jury
    could conclude that Afcon entered into a contract with Bell.
    III.
    Accordingly, the judgment of the district court is
    AFFIRMED.
    

Document Info

Docket Number: 02-1914

Citation Numbers: 64 F. App'x 893

Judges: Goodwin, Joseph, Motz, Niemeyer, Per Curiam

Filed Date: 5/27/2003

Precedential Status: Non-Precedential

Modified Date: 8/6/2023