Filed: Aug. 12, 2002
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT RYAN INCORPORATED EASTERN, Plaintiff-Appellant, v. No. 01-2509 TOLL BROTHERS, INCORPORATED, Defendant-Appellee. TOLL BROTHERS, INCORPORATED, Plaintiff-Appellee, v. No. 02-1147 RYAN INCORPORATED EASTERN, Defendant-Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema and Gerald Bruce Lee, District Judges. (MISC-01-61, CA-01-1940-A) Argued: May 6,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT RYAN INCORPORATED EASTERN, Plaintiff-Appellant, v. No. 01-2509 TOLL BROTHERS, INCORPORATED, Defendant-Appellee. TOLL BROTHERS, INCORPORATED, Plaintiff-Appellee, v. No. 02-1147 RYAN INCORPORATED EASTERN, Defendant-Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema and Gerald Bruce Lee, District Judges. (MISC-01-61, CA-01-1940-A) Argued: May 6, ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RYAN INCORPORATED EASTERN,
Plaintiff-Appellant,
v. No. 01-2509
TOLL BROTHERS, INCORPORATED,
Defendant-Appellee.
TOLL BROTHERS, INCORPORATED,
Plaintiff-Appellee,
v. No. 02-1147
RYAN INCORPORATED EASTERN,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema and Gerald Bruce Lee, District Judges.
(MISC-01-61, CA-01-1940-A)
Argued: May 6, 2002
Decided: August 12, 2002
Before NIEMEYER and GREGORY, Circuit Judges, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
No. 01-2509 reversed and No. 02-1147 affirmed by unpublished per
curiam opinion. Judge Gregory wrote a separate opinion concurring
in No. 02-1147 and dissenting in No. 01-2509.
2 RYAN INC. EASTERN v. TOLL BROTHERS
COUNSEL
ARGUED: Michael Allen Gatje, WICKWIRE GAVIN, P.C., Vienna,
Virginia, for Appellant. Stuart A. Raphael, HUNTON & WILLIAMS,
McLean, Virginia, for Appellee. ON BRIEF: Brian P. Waagner, Mat-
thew J. DeVries, WICKWIRE GAVIN, P.C., Vienna, Virginia, for
Appellant. Jill M. Dennis, Paul D. Flynn, HUNTON & WILLIAMS,
McLean, Virginia; Stephen J. Binhak, TOLL BROTHERS, INC.,
Huntingdon Valley, Pennsylvania, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ryan Incorporated Eastern ("Ryan") appeals two district court
orders denying its requests to compel arbitration: (1) its claim against
Toll Brothers, Inc. ("Toll"), and (2) Toll’s claims brought against
Ryan. Both requests for arbitration stem from disputes over Ryan’s
performance of contracts to construct for Toll a golf course in Ash-
burn, Virginia. And both requests for arbitration were based on a
clause within Article 5 of the construction contracts, pertaining to
"Mechanics’ Liens and Claims," which requires arbitration of disputes
"for work performed [for] which payment has not been made."
We conclude that, because Ryan’s claim was for work performed
on the golf course, it fits within Article 5’s arbitration clause. Accord-
ingly, we reverse the district court’s first order. But we conclude that
Toll’s claims against Ryan are not arbitrable because we construe the
clause to apply only to claims held by Ryan against Toll. Therefore,
we affirm the second order.
I
Toll, a Pennsylvania corporation, hired Ryan, a Florida corpora-
tion, in 1999 to construct a golf course at the Belmont Country Club
RYAN INC. EASTERN v. TOLL BROTHERS 3
in Ashburn, Virginia. The scope of Ryan’s work was defined by three
contracts, referred to as "the Golf Course Contract," "the Earthwork
Contract," and "the Landbay H-1 Contract." And for this work, Toll
agreed to pay Ryan a total lump sum of approximately $17.6 million
plus compensation for any design changes initiated by Toll.
All three of the contracts between Ryan and Toll contained a clause
in "Article 5. Mechanics’ Liens and Claims," providing that:
No liens will be filed for work not performed, or for work
that the Subcontractor [Ryan] has received payment. Fur-
thermore, no lien will be filed for disputed amounts without
providing the Contractor [Toll] and the Subcontractor
[Ryan] a 30 day period in which to reasonably try to resolve
the dispute. If after this resolution period the disputed
amount is not resolved, then the Subcontractor may file a
lien for the disputed amounts for work performed which
payment has not been made. The Contractor [Toll] and Sub-
contractor [Ryan] agree that any nonpaid disputed amounts
will then be arbitrated, and both parties agree to be bound
by the decision of the arbitrator. Should the Contractor
[Toll] prevail in the arbitration, the Subcontractor [Ryan]
will promptly release any liens previously filed relating to
the unpaid, disputed amounts. Should the Subcontractor
[Ryan] prevail in the arbitration, the Subcontractor [Ryan]
shall promptly release any liens previously filed relating to
the unpaid disputed amounts upon receipt of payment for
amounts determined by the arbitration.
(Emphasis added). This clause represents the parties’ only contempla-
tion of arbitration.
The project took longer than expected, and, not unexpectedly, there
were a number of changes initiated by Toll. Although the contracts
required Ryan’s price for changes to be negotiated before Ryan com-
menced work on them, the parties were unable to reach a quick agree-
ment, and Ryan undertook the work on the changes without an
agreed-upon price. Then, at the end of the project, on July 27, 2001,
Ryan submitted a claim for over $10 million for the work performed
pursuant to Toll’s changes. The claim included 19 previously submit-
4 RYAN INC. EASTERN v. TOLL BROTHERS
ted change orders that had yet to be resolved, totaling $1.6 million,
as well as a request for additional compensation due to Toll’s alleged
design and survey errors and alleged interference by Toll in Ryan’s
performance of the work, totaling over $8.7 million ("Ryan’s delay
and interference claim"). Ryan alleged that Toll’s actions forced Ryan
to perform work out of sequence, requiring Ryan to maintain labor
and equipment on the project for an extra 215 days.
Ryan and Toll failed to settle Ryan’s claims, in part because Toll
maintained that Ryan’s claims violated the contracts’ "No-Damage-
for-Delay" clause, which provided that Ryan’s sole remedy for delay
was an extension of time for performance and an accompanying
reduction in the liquidated damages Toll could assess. Ryan accord-
ingly sought arbitration pursuant to the arbitration clause in Article 5
of the contracts. Initially, Toll agreed to an arbitration that was to be
held in September 2001 and suggested using the interim period pend-
ing arbitration to discuss settlement. When settlement discussions
foundered, however, Toll took the position that only the 19 change
order requests submitted before July 27, 2001 were arbitrable and that
Ryan’s delay and interference claim was not.
Thus, Ryan commenced this action under 9 U.S.C. §§ 4 and 5 to
compel arbitration of its delay and interference claim. The district
court denied Ryan’s claim on the ground that Ryan’s delay and inter-
ference claim was a claim for consequential damages and therefore
did not fall within the class of arbitrable claims, which was limited
to claims for work performed for which Ryan had not yet received
payment. Ryan’s first appeal is from the district court’s order denying
arbitration.
Shortly thereafter, Toll commenced an independent action against
Ryan, seeking liquidated damages for delay, damages for alleged
defects in Ryan’s work, and a declaratory judgment that Ryan’s
claims were contractually barred. Ryan moved to dismiss this action
or to stay it, again seeking to have Toll’s claim arbitrated by virtue
of Article 5. The district court also denied this motion, ruling that
Toll’s claims did not involve compensation due to Ryan for work per-
formed. Ryan’s second appeal is from this order. Ryan’s two appeals
were then consolidated in this court.
RYAN INC. EASTERN v. TOLL BROTHERS 5
For the reasons that follow, we now reverse the order in the first
appeal and affirm the order in the second.
II
The arbitrability of Ryan’s delay and interference claim and Toll’s
delay claims against Ryan are "matter[s] of contract interpretation."
Am. Recovery Corp. v. Computerized Thermal Imaging Inc., 96 F.3d
88, 92 (4th Cir. 1996). "[S]ince contract interpretation is a question
of law," our review of "the district court’s conclusions [is] de novo."
Hendricks v. Cent. Reserve Ins. Co.,
39 F.3d 507, 512 (4th Cir. 1994).
To determine whether the parties agreed to arbitrate these claims,
we begin with the language of Article 5, the central portion of which
reads, "The Contractor and Subcontractor agree that any nonpaid dis-
puted amounts will then be arbitrated." (Emphasis added). The word
"then" refers to the end of a progression that is initiated by a "30 day
period in which to reasonably try to resolve the dispute" and is fol-
lowed by an opportunity for Ryan to "file a lien for the disputed
amounts for work performed which payment has not been made."
Completing this progression, it becomes clear that the parties intended
to arbitrate only claims that could not be resolved through negotia-
tion, for "disputed amounts for work performed which payment has
not been made." (Emphasis added). Our focus, therefore, must be
directed to whether the claims in this case fall within that class of dis-
putes, as only those are arbitrable.
The district court followed the same reasoning and found a distinc-
tion between Ryan’s first 19 change order claims, which it concluded
fell "squarely . . . within the arbitration clause," and Ryan’s claim for
delay and interference, which it concluded fell outside that clause’s
scope. We are, however, unable to find support under Virginia law for
this distinction.
Virginia law would treat Ryan’s delay and interference claim as
one for an "unpaid disputed amount," and it would not distinguish that
claim from Ryan’s other change order claims. Despite the fact that
Ryan’s alleged damages were a consequence of Toll’s alleged breach
of contract — i.e., Toll’s alleged errors and interference — they are
not classified under Virginia law as "consequential damages." Unlike
6 RYAN INC. EASTERN v. TOLL BROTHERS
consequential damages, which "arise from the intervention of ‘special
circumstances’ not ordinarily predictable," Ryan’s claimed damages
were alleged simply to be the extra costs for labor and equipment
brought on by having to perform work out of sequence and thus were
the "natural" and "ordinary" result of Toll’s alleged breach of con-
tract. Roanoke Hosp. Ass’n v. Doyle & Russell, Inc.,
214 S.E.2d 155,
160 (Va. 1975); see also R.K. Chevrolet, Inc. v. Hayden,
480 S.E.2d
477, 481 (Va. 1997); Morris v. Mosby,
317 S.E.2d 493, 497 (Va.
1984). Indeed, Virginia law expressly treats "extended financing
costs," brought on by "delay in completion" of large contracts, as
direct damages. Roanoke Hosp.
Ass’n, 215 S.E.2d at 160-61. As such,
Ryan’s delay and interference claim is no different than any other
claim for a "disputed amount[ ] for work performed which payment
has not been made."
We therefore hold that Ryan’s delay and interference claim falls
within the class of claims contemplated by Article 5 and therefore is
arbitrable. In so concluding, however, we do not imply, one way or
the other, whether the claims are permitted by the contract or justified
by the facts. Those issues should be resolved in the arbitration.
Unlike Ryan’s delay and interference claim, however, Toll’s claims
against Ryan cannot be characterized as claims for "disputed amounts
for work performed which payment has not been made," and therefore
they fall outside the scope of Article 5. To begin with, Toll’s claims
are in the nature of a refund of payment; Toll did not perform any
work for which it had to be paid. Moreover, Article 5 sets forth a pro-
gression for Ryan as the contractor to follow when it has a claim
against the owner Toll.1 There is no suggestion in Article 5 — or any-
where else in the contracts — that the same progression applies when
Toll, as the owner, has a claim against the Ryan as the contractor. As
Article 5 applies only to claims by the contractor against the owner,
Toll’s claims against Ryan are clearly outside Article 5’s scope.
Accordingly, even to the extent that Toll’s claims are preemptive
defenses to Ryan’s claims, there is no basis in the contracts for con-
1
The contract actually refers to Toll as the contractor and Ryan as the
subcontractor. But for contractual purposes, they are functioning as
owner and contractor, respectively.
RYAN INC. EASTERN v. TOLL BROTHERS 7
cluding that the parties intended for those claims to be resolved by
arbitration.
In sum, we conclude that the district court erred in denying Ryan’s
petition to compel arbitration of its delay and interference claim, but
was correct in denying Ryan’s motion to stay litigation of Toll’s
claims pending arbitration.2
No. 01-2509 - REVERSED
No. 02-1147 - AFFIRMED
GREGORY, Circuit Judge, concurring in part and dissenting in part:
I concur in the resolution of No. 02-1147, affirming the district
court’s order denying Ryan’s motion to compel arbitration of Toll’s
claims, for the reasons stated by the majority. I respectfully dissent,
however, from the majority’s resolution of No. 01-2509, reversing the
district court’s order denying Ryan’s motion to compel arbitration of
its "delay and interference claim." I would affirm the district court.
The majority is correct that the "delay and interference claim" is a
claim for direct, not consequential damages. But I believe that the
arbitration clause was intended to resolve disputes over amounts due
for work performed, not damage claims arising from breach of con-
tract.
As the majority apparently recognizes, at least a portion of Ryan’s
claim is for breach of contract. To be sure, Ryan also argues (confus-
ingly) that the contract was somehow modified by Toll’s "delay and
interference." But, ultimately, Ryan’s claim is that Toll breached the
contract by violating its contractual "duty to cooperate and not to
interfere with, hinder, or prevent Ryan’s performance." Appellant’s
Reply Br. at 9. This breach, Ryan argues, gives rise to a legal claim
for direct damages, measured by increased expenses as well as lost
profits. J.A. 526-608.
2
As the Declaration of Reza Nikain, PE, PMP, is not relevant to our
analysis, we deny as moot Ryan’s March 19, 2002 Motion to Correct
Record on Appeal.
8 RYAN INC. EASTERN v. TOLL BROTHERS
The majority also appears to recognize that the arbitration clause
relates to claims that could be enforced by a mechanic’s lien. The
clause requires a thirty day negotiation period, after which, if the dis-
puted amount for work performed is not paid, Ryan may file a lien.
Under Virginia law, "[a]lthough [ ] a lien is a creature of statute, the
lien must have its foundation in a contract, with which the lien must
correspond." First American Bank of Virginia v. J.S.C. Concrete Con-
struction, Inc., 523 S.E.2d 496, 497 (Va. 2000); Sergeant v. Denby,
12 S.E. 402, 402 (Va. 1890). A mechanic’s lien is a statutory mecha-
nism to enforce an owner’s obligation to pay the agreed upon price.
See 12B Michie’s Jurisprudence, Mechanic’s Liens § 28 (1992 &
2001 Supp.) ("The lien of a contractor is for the contract price or
other compensation agreed upon."). A mechanic’s lien is not the
equivalent of a common law suit for breach of contract. "[T]he object
of the [mechanic’s lien statute] is to give those who, by their labor
and material, have enhanced the value of the building the security of
a lien thereon to the extent they have added to its value[.]" United
Masonry, Inc. v. Jefferson Mews, Inc., 237 S.E.2d 171, 182 (Va.
1977). In contrast, Ryan’s breach of contract claim is for costs,
incurred by Ryan, associated with Toll’s alleged interference with
Ryan’s contractual performance. The claim is not for value-enhancing
"work performed" of the type that would give rise to a mechanic’s
lien, but rather for damages resulting from Ryan’s inability to perform
work. Because Ryan claims that it was damaged by Toll’s delay and
interference, and is not simply seeking to enforce Toll’s promise to
pay the agreed upon price, the district court was correct in holding
that the claim was not arbitrable.*
I concur in the resolution of No. 02-1147. I respectfully dissent,
however, from the majority’s decision, in No. 01-2509, to reverse the
district court.
*As the above indicates, the distinction between direct and consequen-
tial damages is irrelevant.
