LISA PUPO LENIHAN, Magistrate Judge.
For the reasons set forth below, the Court will grant Plaintiff's Motion for Judgment Pursuant to Federal Rule of Civil Procedure 52(c), ECF No. 234, as Defendants have failed — in their pleadings and evidentiary filings, and through evidence and argument presented during the limited-issue bench trial held on November 1
The extensively documented factual and legal history in this case arising from disputes between the parties with regard to (a) construction material purchases and (b) sub-contracted construction of housing in Defendants' multi-duplex residential developments — Timberlake Village (hereafter "Timberlake") and Cedar Creek — located near Deep Creek Lake, in Garrett County, Maryland was most recently summarized by this Court in its October 11, 2016 Memorandum Opinion on Contractual Damage Limitations (the "Damage Limitations Opinion"), ECF No. 214.
The determination of Defendants' ability to make out the elements of their tort-based counterclaims was rendered more critical to the parties' accurate assessment of their litigation positions by this Court's October 11, 2016 Opinion. In the Damage Limitations Opinion, ECF No. 214, and subsequent January 3, 2017 Order, ECF No. 237, this Court concluded that the parties' contractual limitation of damage provision of the Subcontract Agreements' Paragraph 15, was an enforceable and independent provision, precluding "any consequential, indirect, exemplary or punitive damages of any type" as to those contract claims encompassed by the parties' clear language, i.e., damages "under this paragraph" and therefore those claims related to/flowing from "defects in workmanship or materials."
As explicated in previous Opinions, Defendants' Second Amended Counterclaim, ECF No. 44, theories of tort liability were:
(a) claims by each of the Defendants for (i) unspecified negligent misrepresentations (implicitly and by incorporation those misrepresentations made to Mortimer and underlying Count I), and (ii) fraud/intentional misrepresentation/concealment expressly with regard to Summer, 2009 representations to Mortimer regarding faulty construction issues and Plaintiff's intent to correct/purported correction of them (Counts II and III, respectively);
(b) claims by Mortimer for fraud in the inducement (Count I) by both (i) misrepresenting that improper CCA charges made in 2007 by a subsequently-fired Maryland manager would not recur
And these claims remained as set forth above throughout subsequent pleadings, including, e.g., Defendants' October 18, 2016 Amended Pretrial Statement, ECF No. 224
As with its detailing of the nature and basis of Defendants' tort claims, the Court has repeatedly recounted its concerns regarding apparent evidentiary insufficiencies as to the elements of these claims. Hence, e.g., the Court's direction that Defendants provide an Offer of Proof, and thereafter an Amended Offer of Proof. Of particular significance, the problematic nature of a showing of reasonable reliance was highlighted by the Court in its Damage Limitations Opinion footnotes on Defendants' factual representations. See supra nn. 4-8; see also ECF No. 214 at 21-22 (parsing, with reference to previous factually-detailed footnotes, Defendants' basis for alleged fraudulent inducement). Despite the continuing inadequacies of Defendants' Amended Offer of Proof, ECF No. 222, the Court permitted Defendants an opportunity to show reasonable reliance through the presentation of evidence and legal argument during the limited-issue Bench Trial.
As Plaintiff correctly notes, Rule 52(c) provides that this Court may make dispositive findings of fact based on the burden of proof, evidence admitted and the Court's credibility determinations thereof. See Plaintiff's Memorandum in Support of Judgment, ECF No. 235 at 2-3. More particularly, "[i]f a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter a judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue." Id. (quoting Rule 52(c))
As Defendants correctly set forth, the elements of fraud require that they show, by clear and convincing evidence, that: (1) Plaintiff made a false representation to them, (2) with knowledge of its falsity or reckless indifference to its truth, (3) and for the purpose of defrauding Defendants, (4) Defendants justifiably relied on the misrepresentation, and (5) they suffered compensable injury as a result. See Defendants' Amended Offer of Proof, ECF No. 222, at 2-3 (citing Hoffman v. Stamper, 385 Md. 1, 28, 867 A.2d 276, 292 (2005)). As they also correctly set forth, the elements of negligent misrepresentation require them to establish, by a preponderance of the evidence, that: (1) Plaintiff, owing a duty of care to Defendants, negligently asserted a false statement; (2) intending that it would be acted upon by Defendants; (3) with knowledge that Defendants would probably rely on the statement, which, if erroneous, would cause loss or injury; (4) Defendants justifiably took action in reliance on the statement; and (5) they suffered damage proximately caused by Plaintiff's negligence. See Defendants' Amended Offer of Proof, ECF No. 222, at 3 (citing Lloyd v. Gen. Motors Corp., 397 Md. 108, 135-36, 916 A.2d 257, 273 (2007); White v. Kennedy Krieger Inst., Inc., 221 Md.App. 601, 648, 110 A.3d 724, 751, cert. denied sub nom. White v. Kennedy Krieger Inst., 443 Md. 237, 116 A.3d 476 (2015)). See also Plaintiff's Memorandum in Support of Judgment, ECF No. 235, at 3 (Plaintiff's concurring statement that "[i]n the context of their negligent misrepresentation claim, Defendants must establish reasonable reliance by a preponderance of the evidence; . . . in both fraud claims, Defendants must prove reasonable reliance by
As preface to its analysis of reasonable reliance on alleged misrepresentations, Plaintiff appropriately notes the relevance of both (1) Defendants' extensive business experience in the local construction industry — over two decades and approximately 200 primarily residential projects, with revenues in excess of $60 million, and millions of dollars in loans from various banks; and (2) Defendants' (a) own inquiry as to construction materials invoicing misbillings/improprieties, and (b) own inquiry and retention of third-party experts/consultants as to construction defects and repair. See ECF No. 235 at 5-7 (citing to specific portions of Mortimer's Bench Trial testimony). See also discussion supra, including nn. 4-8, and infra. Cf. ECF No. 235 at 10 (quoting Mortimer's testimony that "in construction, there's always issues"); id. (noting that "where the means of knowledge are open and at hand or furnished to the [relying party] . . . and no effort is made to prevent the [relying party] from using them, and especially where the [relying party] undertakes examination for himself, he will not be heard to say that he has been deceived to his injury by the misrepresentations of the [inducing party]") (quoting Piper v. Jenkins, 113 A.2d 919 (Md. 1955)). See further discussion, infra.
As noted supra, Defendants' Second Amended Counterclaim basis for their tort claim(s) on billing misrepresentations are: misrepresenting that (a) improper Commercial Credit Agreement ("CCA") charges made in 2007 by a subsequently-fired Maryland manager were not recurring/would not recur and (b) a Fall 2008 internal audit was conducted and showed no improper CCA charges. See ECF No. 44. Defendants cannot maintain a tort action requiring reasonable reliance on either misrepresentation where none was justifiable and/or even evidenced.
As noted supra, Defendants assert there were misbillings related to construction of Mortimer's Holy Cross residence both leading up to and immediately following the parties' October, 2007 settlement agreement, i.e., prior to entry into the April, 2008 Subcontract Agreement. Their evidence is that Mortimer and his spouse were (a) well-acquainted with the particulars of Plaintiff's CCA invoices over years of extensive business dealings, (b) regularly reviewing those invoices (governed by the parties' 1997 CCA) and identifying erroneous/disputed charges, (c) discussing invoices with Plaintiff's representative(s), and (d) having payments due adjusted.
As to the store-wide "broad" audit requested by Mortimer in August, 2008 and conducted by Plaintiff (assertedly improperly), with its outcome reported to Mortimer: the record indicates that Defendants entered into another Subcontract Agreement on August 25, 2008. This apparently occurred in the interim between Mortimer's (a) independent ongoing awareness of CCA misbillings and monthly negotiations/adjustments, and being told — "during August" by Plaintiff's own employees at Defendants' construction site — of alleged improper materials charges (see supra, n. 5); and (b) obtaining, in a September, 2008 meeting, verbal representation of the result of Mortimer's requested "complete audit of the [entire] store".
The Court expressly noted the chronology of their evidence and the apparently-problematic matter of foreknowledge and subcontract execution to this claim, see supra (discussing prior Opinions). Yet Defendants have failed to provide any evidence in support of a contrary understanding of the time frame of: Defendants' ongoing invoice-review awareness of misbillings, Mortimer's August on-job-site conversations with Plaintiff's employees regarding misbillings, his contact with Plaintiff's representatives at other location(s), Plaintiff's audit, and Mortimer's meeting to receive oral audit representations in September. To the contrary, Defendants' Bench Trial testimony on this subject omitted evidence of a contrary relevant timing of events. See generally ECF No. 230-231.
As with their asserted justifiable/reasonable reliance on Plaintiff's alleged billing misrepresentations, Defendants simply cannot make out reasonable reliance on Plaintiff's alleged audit representations. Defendants (a) had performed, and continued to perform, customary commercial business review of invoices prior to payment, (b) were ongoingly aware of and negotiating correction of misbillings, (c) requested an audit but had not yet obtained/reviewed any audit information, and (d) continued and expanded their subcontract relationships with Plaintiff. The Court again notes that Defendants indicate their continuation and extension of Subcontractor Agreements was an informed and weighed business decision. For example, Plaintiff's participation was generally advantageous, or even necessary, for Defendants to obtain/ensure bank financing for their expanding construction projects. Moreover, Defendants testified that Plaintiff's involvement was essential to a bank's offering/approving Defendants' take-over of construction on the bank-foreclosed Cedar Creek project. See generally ECF No. 230-231 (Mortimer's Bench Trial testimony); ECF No. 230 at 35 (testimony that bank approved Cedar Creek loan package, when Defendants had numerous other projects, on basis of subcontracts with Plaintiff).
In sum, Defendants have failed to make a sufficient showing — under the applicable standards for either fraudulent or negligent misrepresentation — that they justifiably relied on alleged misrepresentations regarding misbillings or audit results. See Plaintiff's Brief in Support, ECF No. 235, at 3, n. 4 (observing that "[a]mong the five elements of negligent misrepresentation is that a plaintiff must show she justifiably takes action in reliance on the statement") (quoting Dynacorp Ltd. v. Aramtel Ltd., 56 A.3d 631 (Md. App. 2012)); id. at n. 5 ("To recover on a claim for fraud, including fraud in the inducement, a plaintiff must show, inter alia that she not only relied upon the misrepresentation, but had a right to rely upon it in the full belief of its truth, and would not have done the thing from which the injury had resulted had not such misrepresentation been made.") (quoting Parker v. Columbia Bank, 604 A.2d 521 (Md. App. 1992)); id. at 10 ("[W]here the means of knowledge are open and at hand or furnished to the [relying party] . . . and no effort is made to prevent the [relying party] from using them, and especially where the [relying party] undertakes examination for himself, he will not be heard to say that he has been deceived to his injury by the misrepresentations of the [inducing party].") (quoting Piper v. Jenkins, 113 A.2d 919 (Md. 1955)).
Defendants appear to now abandon their claim of misrepresentation premised until quite recently on performance of the contracted work by "friends and family" rather than subcontractors who were part of an 84 Lumber National Install Program. See Defendants' Memorandum of Law in Support of Opposition, ECF No. 238 (omitting any argument on this claim); id. at 6 (acknowledging Mortimer's testimony that he visited job site and recognized local subcontractors, and stating "Court noted that this testimony effectively foreclosed any claim Mortimer might have that he relied on representations that 84 Lumber would use a national team of installers"). This adjustment in their litigation position is prudent given the record.
As this Court has previously observed in Opinions and Plaintiff largely correctly reiterates in the Memorandum in Support of its pending Motion: (1) with the exception of enumerated specifications as to decking (requiring "trained and experienced personnel"), the Subcontract Agreements contain no language specifying composition of the workforce; and (2) Mortimer was personally aware of subcontractors who would be and/or were working under the Subcontract Agreements prior to/or shortly after execution of each (between April and October, 2008). See ECF No. 235 at 13.
Plaintiff well-presents the analysis of the effect of the parties' contract language with citations to this Court's prior Opinions (including the Damage Limitations Memorandum, ECF No. 214, and Memorandum Opinion on the Parties' Multiple Motions and Cross-Motions for Summary Judgment, ECF No. 166), the evidence and case law. See ECF No. 235 at 14-17 (explaining that written contract terms (and, alternatively silence/absence as to alleged material misrepresentations) are relevant to reasonableness of reliance) (citations omitted). See also Central Truck Ctr., Inc. v. Central GMC, Inc., 4 A.3d 515 (Md. App. 2010).
Similarly, Plaintiff provides an apt analysis of the evidence and the law as to the timing and extent of Defendants' knowledge of the subcontractors employed. See ECF No. 235 at 10 ("Evidence presented at trial revealed Mortimer was far from an absentee general contractor."); id. at 11 ("Mortimer was involved in the projects and was present at the job sites to witness work by subcontractors he knew. . . .") (quoting Mortimer's testimony that prior to signing August [and subsequent] Subcontract Agreements, he observed local subcontractors who worked on his prior residential construction projects now working at the Subcontract construction site); ECF No. 231 at 5 (Mortimer's testimony that "I actually preferred they used local that were qualified because we are a small community. So, anything we could keep business-wise in the community was very fair to me, I preferred that, as long as they were vetted and qualified with proper licenses and insurance.").
Nor can Defendants' comparatively-recent allegations of Plaintiff's failure to supervise — presented both as breach of contract, see supra, and as an alternative tort claim — avail them in opposition to Plaintiff's motion. The Court notes, as in its Memorandum Opinion on Defendants' Motion to Reconsider, ECF No. 236, serious considerations of waiver as to new allegations and theories of liability in an almost six (6) year old litigation. See ECF No. 236 at 9-10. Moreover, Defendants' repeated assertions of the breach of contract nature of their new claims regarding Plaintiff's supervisory obligations raise considerations of estoppel as well. See discussion, supra.
Even momentarily setting aside the likely applicability of waiver and/or estoppel, and considering this asserted tort claim, the Court finds it subject to a ruling in Plaintiff's favor:
Defendants contradict their own assertions regarding Plaintiff's representations of supervisory responsibility. More specifically, Mortimer himself presented somewhat conflicting testimony regarding whether Plaintiff represented that it was assuming supervision of the entire construction site (as, e.g, a "project manager") or supervision of its own Subcontract Agreement workforce (by, i.e., a "site superintendent" as referenced in the parties' contracts). See ECF No. 230 at 32 (Mortimer's testimony that he doesn't recall if Guthrie ever said Mortimer "didn't need to hire a project manager when [he] used [the] Install Program", but "talked to" Mortimer about having freedom); id. at 28-29 (testimony that Plaintiff represented Mortimer could save the expense of a project manager and could focus on other projects)
The evidence indicates that Plaintiff was supervising its own subcontractors (many of whom were known to, some of whom were previously directly employed by, Defendants). Defendants' own evidence indicates that Mortimer was present at/visited the construction sites and observed the workforce (including those known to him from direct-hire on prior projects and his long construction dealings in the local community). It also indicates Mortimer interacted with Plaintiff's designated supervisor Gary Uphold (with whom Mortimer had a long acquaintance) and other individuals/employees on location (who were, by Defendants' assertions, speaking directly to Mortimer regarding alleged construction materials misbillings and construction defects). See e.g., discussions of Defendants' evidence regarding construction sites, supra; ECF No. 231 at 19-20 (Mortimer's testimony that during initial project construction and Summer, 2008, he was in contact with Gary Uphole and called him "I don't know how many times a week").
To the extent Defendants' "national install program" tort claim could now be recognized as a "failure to supervise the project site" tort claim, Defendants fail to make sufficient showing of the requisite element of reasonable reliance. First, the evidence demonstrates Mortimer's extensive construction experience in the community, presence on the project sites, familiarity and indeed interaction with at least some number of subcontractor workers, knowledge of and contact over the extended construction periods with Uphold as site superintendent of the subcontract work, and simultaneous absence of contact with Guthrie despite Plaintiff's purported express representation that he would be managing the projects. Second, the actual contract terms are again relevant to Defendants' reasonable reliance. The negotiated terms indicate Plaintiff's responsibility to supervise its own subcontract workers but do not provide that Plaintiff was also assuming the usual general contractor's role as project manager. Nor do the Subcontract Agreements exempt Mortimer from any responsibility for the construction sites other than/until final "punch list"/walk through. To the contrary, they provide in relevant part:
See, e.g., ECF No. 230, Bench Trial Joint Exhibits, J2-7 (Subcontractor Agreements) (emphasis added). See also Plaintiff's Reply to Defendants' Brief in Opposition, ECF No. 241, at 4 ("It is beyond comprehension that a general contractor in the industry for over two decades believes his sole responsibility on a multi-million dollar project is to do a final walk-trough. As the Agreements suggest, a general contractor has more duties."); id. (noting that Subcontract Paragraph 13 provides Mortimer was "responsible for coordination of the site, schedule, materials storage, and other trades work. . . . The Agreements require Mortimer be a general contractor, not a customer waiting for a finished product.") (citing Bench Trial Exs. J2-J7).
As discussed at the outset of this Opinion, Defendants' Second Amended Counterclaim, ECF No. 44, alleged fraud/intentional misrepresentation/concealment expressly with regard to Summer, 2009 representations to Mortimer regarding faulty construction issues and Plaintiff's intent to correct/purported correction of them. See supra at 4. See also id. at n. 4 (quoting Defendants' Combined Statement of Material Facts, ECF No. 153, at 20 (stating that in Spring and Summer 2009, Mortimer received "numerous reports of leaks at units at both Timberlake and Cedar Creek" and notified 84 Lumber, and that Mortimer "retained multiple engineers and construction professionals to investigate the issues", made written demands for repair and 84 Lumber "repeatedly represented that [it] would correct all construction defects"); id. at 21 (recounting that in August through mid-September, 2009 84 Lumber retained other construction contractors to investigate and repair the defects and falsely represented they were corrected)).
As Plaintiff has observed, Defendants' independent investigations of the construction defects, and communication/consultations with Plaintiff's representatives at various levels regarding the causes, remedies and attempts at repair, are significant to the element of reasonable reliance. See ECF. No. 235 at 10 (noting that under Maryland law where one "undertakes examination for himself, he will not be heard to say that he has been deceived to his injury by the misrepresentations. . . .") (quoting Piper v. Jenkins, 113 A.2d 919 (Md. 1955)).
It is beyond possibility that Defendants reasonably relied on "misrepresentations" about the existence and remediation of construction issues, such as leaks, where: (a) Mortimer personally observed or was notified by site workers of defects and was actively engaged in ongoing communication with Plaintiff regarding particular defects; (b) Defendants and Plaintiff were on site and repairs were attempted; and (c) both parties brought in inside and/or outside counsultants/experts, and discussed possible sources of the construction problems (e.g., materials vs. installation). See, e.g., ECF No. 231 at 46-47, 52 (Mortimer's testimony recounting communications with Plaintiff beginning when leaks occurred (which he first observed in Spring, 2009), that Plaintiff "brought some people in" and "they were trying to fix it" over a period of 18-20 months); id. ("They brought in other contractors. So there were multiple different people they brought in to fix these problems."); id. at 47 (testifying, as to recurrence of leaks, that "when we saw the leaking [perhaps "a few months" after Plaintiff said it was fixed], we would notify the store . . . and they would come in and address those issues); id. at 47-50 (testimony that "in many instances" Plaintiff undertook repair endeavors it promised and that it brought in consultants and engineers with regard to construction problems); id. at 53-54 (Mortimer's testimony that he "didn't just rely on" Plaintiff but "allowed" Plaintiff's "store level" employees a "reasonable amount of time", i.e., a "couple months" and "a couple times" to repair leaks and, "when they couldn't fix them", Mortimer "went up [with Plaintiff's higher-level employee(s)] to several different crews to try to fix these leaks through a period of time"); id. at 54-55 (testimony that during Spring and Summer 2009 Mortimer promptly reported leaks he observed and was given repeated assurances that Plaintiff would bring in proper professionals to fix them); id. at 58 (recounting, as an example, leak that could have been installation or manufacturing problem, in which "everyone thought it was the doors at the time" so Plaintiff "brought the door company out"); id. at 62-63 (testifying that Mortimer had two independent inspections/observations done "by professional experts" and provided report(s) to Plaintiff).
The Court observes Defendants' express testimony that Plaintiff made ongoing attempts at repair, and that Defendants and Plaintiff were undertaking independent inquiry and exchanging information. See, e.g., ECF No. 230, Defendants' Ex. G (Defendants' August 28, 2009 "breach of contract" letter to Plaintiff documenting construction defects and attaching independent inspect report/recommendations of Highland Engineering); id. Defendants' Ex. J (Defendants' email of January 28, 2009 attaching an independent inspection report from Megco Inspections); id. at 154 (Mortimer's testimony that he immediately provided his reports from independent investigations of defects to Plaintiff to "just kind of help out and give direction and try to fix these problems"). Plaintiff's alleged — and substantially evidenced — protracted failure to successfully repair construction defects to the standard guaranteed under the Subcontract Agreements' Paragraph 15 gives rise to liability for breach of contract;
In the end, although there is substantial evidence that Plaintiff's performance of its contractual undertakings was lacking, nothing in this record can serve to convert Plaintiff's substandard construction, however substantial, from breach of contract into a tort of misrepresentation. To the contrary, the evidence indicates that Defendants, sophisticated developers, knew — throughout their relevant contractual relationships with Plaintiff — what they were getting and indeed took care to know. Defendants were undoubtedly disappointed in their hopes; but as to what has been sufficiently supported in the record, they were not misled. Rather than relying uncritically on Plaintiffs' statements, communications, and reports, Defendants made business decisions informed by their own factual reviews and investigations.
For the reasons set forth in this Opinion above, the Court will grant Plaintiff's Motion for Judgment on Defendants' Tort Counterclaims, ECF No. 234, requesting judgment on Counts I through III of Defendants' Second Amended Counterclaim, ECF No. 44. Order to follow.
In support of that Motion, Defendants asserted as breaches of contract new factual allegations included during the November, 2016 Bench Trial and in Defendants' later Memorandum in Opposition to Judgment, ECF No. 238, as fraud/negligent misrepresentation torts. See Defendants' Supplemental Memorandum of Law in Support of Motion to Reconsider, ECF No. 229, at 3 (asserting new theories of liability — stemming from factual allegations of Plaintiff's failure to "provide competent supervision . . ., proper insurance . . . and a site superintendent" — as providing grounds for a holding that "paragraph 15's consequential damages limitation does not apply to [Defendant]'s claims for breach of contractual obligations outside the scope of paragraph 15's warranty") (emphasis added). The Court determined it unnecessary to address the issue of waiver. It concluded that "assuming any breach of contract as now alleged — the nexus between it and any possible harm to Defendant under the contracts would be a defect/delay in materials or workmanship that could have been prevented, ameliorated, or cured. That is, Paragraph 15's limitation of damages addresses — as contractual damage limitations do — the harm for which Plaintiff is liable, not the conduct. As Defendant has specified no new breach of contract claim outside the scope of Paragraph 15, the Court will not issue an advisory order. . . ." ECF No. 236 at 9-10.
See also, infra n.8 (noting Defendants' Amended Pretrial Statement, ECF No. 224, stating that "misrepresentation alleged is as to the work force, and the contractual obligations alleged are as to supervision and workmanship guarantees"); Defendants' Combined Statement of Material Facts, ECF No. 153 (asserting material breach of contracts "by failing to provide competent supervision as required by General Condition 1" and following with subparagraph listings of the resultant construction defects at each unit); further discussion, infra.
See also id. (quoting ECF No. 153 at 14 (stating that Mortimer relied upon 84 Lumber's false and misleading assurances that no improper billing or manipulation of his account had occurred [and] would not have executed the Subcontractor Agreements for Timberlake Building 11 and Cedar Creek Buildings 1 & 2 without these representations) and observing the execution dates of these contracts, as well as that for Timberlake Building 12, i.e.: the first Subcontractor Agreement was executed in April, 2008 (Timberlake #8); the second (Timberlake #12) in late August, 2008; and the additional three (3) in late October, 2008). The Court observes again that the "late August, 2008" Subcontract Agreement and its relation to an asserted CCA misbilling audit misrepresentation claim was noted to Defendants in the Court's Damage Limitations Opinion.
See also ECF No. 235 at 7 ("In the 2008 to 2009 time frame, Mortimer spent between $80,000.00 and $200,000.00 per month at the 84 Lumber store in Oakland, Maryland.") (citing Trial Transcript Day 1, pg. 88:7-10); ECF No. 231 at 21-22 (Mortimer's trial testimony that as a general contractor he's received probably thousands of material invoices, reviewed them, and was routinely not paying "the amount billed" on statements from Plaintiff because they included billings that were improper); id. at 28-29 (testimony acknowledging Mortimer's experience with reviewing invoices and noticing mistakes, and that his ability to catch them varied by number of invoices received that month, e.g., "you should be able to find mistakes" with 100 invoices "to go through" but "it's much more difficult to determine all the improper invoicing" in a month when you have ordered a lot of materials and have 500 invoices); id. at 29 ("So I paid for invoices that I did not see [were] improper at the time."); id. at 30-31 (testimony that "[a] lot of times" Mortimer received invoices for work not yet started/completed, which was "easily" seen, and he called Plaintiff to correct/issue credit); id. at 29-30 (testimony that Mortimer had meetings with Plaintiff's personnel in various positions, the frequency of which depended on "how bad [Mortimer] complained about particular invoice issues, and that he "always went to the next level" when he "felt [he] wasn't getting an honest response"). See generally ECF No. 230 (Mortimer's extensive first day Bench Trial testimony as to billings).
Cf. ECF No. 230 at 53 (trial testimony that following 2007 settlement, Plaintiff told Mortimer he "would not have to spend [his] time or worries on" materials misbillings); id. at 79 (testimony that Mortimer's wife "did the billing" and went over the CCA materials statements with him).
Nor do they contain any provisions regarding individual subcontractor's licensing/insurance — a late-raised theory of (a) first breach of contract and (b) then tort liability, which Plaintiff factually disputes, and which is irrelevant. Defendants have neither (a) proffered evidence of any individual subcontractor's breach of professional licensing/insurance or any harm caused to them thereby, nor (b) pursued licensing/insurance as a basis of tort liability in their post-Bench Trial pleadings. See ECF No. 235 at 15-16; ECF No. 231 at 16-18 (Mortimer's testimony that he had no knowledge/indication of whether subcontractors (as opposed to Plaintiff) were insured or if they were "vetted" by Plaintiff). Cf. ECF No. 235 at 16, n. 11 (Plaintiff's attestation of requirements for subcontractor's employment by 84 Lumber). See generally Defendants' Memorandum in Support of Opposition, ECF No. 238.
The Court concurs with Plaintiff's observation that Gross v. Sussex Inc., 630 A.2d 1156 (Md. 1993), is inapposite. See id. (disputing Defendants' assertion that Gross, in which a real estate agent was found to have reasonably relied on the developer's misrepresentations that proper permits had been obtain, supports a finding of reasonable reliance by Defendants on alleged misrepresentations regarding site supervision).
The Court therefore pauses to direct Defendants to its prior analysis of an asserted analogy to Waters. See, e.g., Damage Limitations Opinion, ECF No. 214, at 12. It further observes that the Massey-Ferguson factory-made tractor — a self-contained complex product — was under the exclusive control of the defendant as to both initial and re-manufacture; there was no role for the purchaser. The factual circumstances of the case sub judice, as discussed extensively during this litigation — including the communications and interactions between Plaintiff, Defendants, and their employees and consultants — are simply not analogous.
