UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PRECON CORPORATION; ALLIANCE
CONTRACTING, INCORPORATED,
Plaintiffs-Appellees,

v.                                                                   No. 95-2480

G & B ENVIRONMENTAL,
INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-93-2432-PJM)

Argued: September 25, 1996

Decided: December 5, 1996

Before MURNAGHAN and HAMILTON, Circuit Judges, and
MICHAEL, Senior United States District Judge for the Western
District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Roger Cavenaugh Jones, HUDDLE & JONES, P.C.,
Columbia, Maryland, for Appellant. Timothy Guy Smith, TIMOTHY
GUY SMITH, P.C., Woodbine, Maryland, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This appeal involves a contract dispute between appellant, G&B
Environmental, Inc. (G&B), a Delaware corporation, and appellees,
Precon Corporation (Precon) and Alliance Contracting, Inc. (Alli-
ance), Maryland corporations.1 G&B contends that the district court
erred when, following a bench trial, it entered judgment in favor of
Precon and Alliance in the amount of $204,788. G&B asks this court
to reverse the judgment in favor of Precon and Alliance and award
judgment in favor of G&B in the amount of $43,525. In the alterna-
tive, G&B asks this court to modify the judgment of the district court
by reducing the amount of the judgment in favor of Precon and Alli-
ance. For the reasons provided below, we affirm in part, vacate in
part, and remand for modification of the judgment consistent with this
opinion.

I.

This dispute involves two agreements between the parties for the
performance of work on a construction project in Washington, D.C.,
known as the Veteran Affairs Building (the Project). The first agree-
ment was a written agreement between G&B and Precon for the per-
formance of asbestos removal work on the Project. The second
agreement was a verbal agreement between G&B and Alliance for the
performance of demolition work on the Project.
_________________________________________________________________

1 Because there is complete diversity of citizenship between the parties
and the amount in controversy exceeds $50,000, the district court prop-
erly exercised diversity jurisdiction over this dispute under 28 U.S.C.
§ 1332.

                    2
A.

These agreements originated early in 1991 when Ronald Hsu, the
general contractor for the Project, approached Duane Massingale,
president and owner of Precon and Alliance, about performing the
asbestos removal and demolition work on the Project. Because Precon
and Alliance did not have the bonding capacity for the bid, Massin-
gale approached G&B to help finance the Project. Negotiations
between the parties followed.

During at least one meeting at which the agreements were being
formulated, both K.C. Goel, president of G&B and the person who
entered into the agreements on behalf of G&B, and Asha Goel, K.C.
Goel's wife, were present. Asha Goel was actively involved in the
negotiations at that meeting and indicated that it was her money that
was being advanced for the Project.

The parties eventually reached agreements with respect to both
parts of the Project, and work on the Project began in mid-1991. With
one exception, the parties are in accord that the agreements for both
phases of the Project were identical. Because the agreement between
Precon and G&B was eventually reduced to writing 2 and executed in
the State of Maryland, we will consider its provisions as representa-
tive of both agreements and then discuss the single provision con-
tained in the written contract between Precon and G&B that G&B
asserts is different from that orally agreed upon by Alliance and
G&B.

First, the parties agreed that the profits from both the asbestos
removal and demolition phases were to be split between Precon and
G&B and between Alliance and G&B, respectively. In addition, the
parties agreed that no payment would be made for services rendered
by the stockholders of G&B, Precon, or Alliance, and that if any sal-
_________________________________________________________________
2 Although the agreement between Precon and G&B is dated Septem-
ber 3, 1991, G&B contends that it was actually prepared and executed
in January 1992 and backdated at Massingale's request to September 3,
1991. Precon does not dispute this characterization of the facts. We do
not need to decide the effective date of the written contract, however,
because this date is not material for purposes of the issues on appeal.

                    3
ary was paid, it would be treated as a distribution of profits. The
agreements provided further that Massingale would provide the direc-
tion and day-to-day management of the Project, while G&B, through
K.C. Goel and/or Asha Goel, would provide financial management
and record keeping. In addition, under the agreements, no person
other than Massingale, K.C. Goel, or Asha Goel would have the
authority to commit any expenditure related to the Project. With
regard to the rental of equipment, the contract between Precon and
G&B stated that "each entity [would] charge the [P]roject its lowest
rate, typically eighty percent of the market rate." (J.A. 14). The con-
tract between Precon and G&B was silent with regard to other items
of overhead.

Although the written agreement between Precon and G&B states
clearly that both profits and losses would be divided equally between
them, G&B and Alliance dispute whether they agreed to divide
equally any losses incurred during the demolition phase of the Project
in their oral agreement. G&B insists that they agreed that Alliance
would be responsible for 100% of any loss incurred during the
demolition phase of the Project, while Alliance contends that they
agreed that any loss during the demolition phase would be divided
equally, just as the profits were to be divided equally.

On January 14, 1992, K.C. Goel and Massingale executed an
Amendment to the Agreement between Precon and G&B. This
amendment provided: "It now appears that the Demolition Phase of
the [P]roject will lose money instead of generating profits. Precon
Corporation agrees to bear the loss incurred during the Demolition
phase for Alliance Contracting's share of the loss." (J.A. 15 (empha-
sis added)). The underlined portion of the quoted language was hand-
written and initialled by both Massingale and K.C. Goel. The rest of
the amendment was typewritten.

An identical amendment to the one set forth above was prepared
for the agreement between G&B and Alliance but was never executed
by G&B. There is no evidence, however, that G&B refused to execute
the amendment because of its handwritten portion.

The work on the Project was completed by January 1992. Thereaf-
ter, Precon and Alliance received a profit distribution in the amount

                    4
of $359,506.00. As part of its calculation of the profit due Precon and
Alliance, G&B included in its total project costs $10,000 paid to P.K.
Goel, K.C. and Asha Goel's son, and $12,000 paid to Asha Goel for
work ostensibly performed for the Project. Although Precon and Alli-
ance repeatedly asked to see the financial records from the Project,
G&B failed to make any financial records available to Precon and
Alliance.

B.

On August 20, 1993, Precon and Alliance filed suit against G&B
in the United States District Court for the District of Maryland. Pre-
con and Alliance alleged causes of action for breach of contract and
for conversion. In their complaint, Precon and Alliance alleged that
they had completed all of their obligations with respect to the Project
and that G&B had not paid them the full amount of the profit due
them. G&B denied liability and subsequently filed a counterclaim
alleging that it had overpaid Precon and Alliance and that judgment
should be rendered in its favor in the amount of $192,260.84.

Some time after Precon and Alliance filed suit, G&B computed
that it was entitled to receive compensation for general office over-
head attributable to the Project at the rate of 31.87%. Just prior to
trial, this figure was reduced to 14.3%, and at trial, it was further
reduced to 13.8%.3

As support for its contention that it overpaid Precon and Alliance,
G&B submitted to the district court its financial statement with regard
to the Project. According to this statement, the asbestos removal
_________________________________________________________________
3 At trial, G&B introduced the testimony of Harry Papeleo, an expert
witness in accounting. Papeleo testified that the overhead rate to be
charged to a particular project is calculated by dividing the total com-
pany operating expenses by the total project expenses. The total project
expenses are then multiplied by that rate, and the result is the amount of
overhead attributable to the project.

In this case, G&B now asserts that it is entitled to overhead at a rate
of 13.8%. Multiplying 13.8% by the total direct costs of the Project, cal-
culated by G&B to be $2,302,195, results in $317,703 that G&B is
attempting to charge the Project for general office overhead.

                    5
phase of the Project resulted in a profit to the parties of $612,692,
while the parties incurred a $97,799 loss during the demolition phase
of the Project. This statement also reflects a charge of $113,584 to the
demolition phase of the Project for G&B general office overhead.

C.

On July 5 and 6, 1995, the district court conducted a two-day bench
trial. Although most of the testimony elicited the facts as stated above
and, therefore, need not be recited here, G&B particularly relies on
two portions of the trial testimony on appeal.

First, in response to a question on cross-examination that was
apparently asked in an effort to establish that the parties did not intend
to enter into a "joint venture" and, therefore, that the rules applying
to joint ventures would not apply in resolving the parties' dispute,
Massingale testified that the subcontract for the Project was between
the general contractor, Ronald Hsu, and G&B, not between Ronald
Hsu and a joint venture, consisting of G&B, Precon, and Alliance. In
addition, Massingale acknowledged that while the parties had a profit
sharing arrangement, they were not a joint venture as that term is
commonly used.

Second, in an effort to explain overhead expenses G&B alleged
should be included when calculating the profit to be shared by the
parties, K.C. Goel testified that included in the general office over-
head figure were depreciation costs for equipment G&B provided to
the Project. K.C. Goel presented evidence that G&B had provided
various pieces of equipment to the Project and that 80% of the market
rental rate of all of the equipment was $63,432. According to K.C.
Goel, G&B never submitted a bill for the rental equipment, but rather,
included those costs in its general office overhead figure.

D.

The district court recited its findings and conclusions of law from
the bench on July 6, 1995. After defining a joint venture under Mary-
land law as an operation of two or more persons in a single transac-
tion for profit, the district court concluded that the agreements in this

                     6
case constituted a joint venture between G&B, Precon, and Alliance.
Therefore, the district court stated that in the absence of a specific
agreement as to how the transaction was to be conducted, the princi-
ples of joint ventures would apply and determine the outcome of the
case.

The district court next interpreted the agreements to provide that
Alliance would bear 50% of the losses as well as 50% of the profits
from the demolition phase of the Project, as evidenced by the lan-
guage in the amendment to the Precon-G&B contract providing that
Precon would be liable for Alliance's "share" of the loss in the
demolition phase of the Project. According to the district court, had
G&B and Alliance intended Alliance to bear 100% of any demolition
phase loss, the contract could have stated so explicitly.

The district court next held that because the parties had entered into
a joint venture, they owed each other a fiduciary duty to account. The
district court found that Precon and Alliance had repeatedly asked to
see G&B's books, but G&B ignored their requests. According to the
district court, G&B thereby violated its fiduciary duty toward Precon
and Alliance.

The district court then considered the salaries paid to Asha Goel
and to P.K. Goel and held that these payments were made in violation
of G&B's fiduciary duty to Precon and Alliance. The district court
acknowledged that Asha Goel claimed to have provided sixty hours
a week of bookkeeping service to the Project. However, the district
court expressed skepticism with regard to this claim, noting that Asha
Goel also testified to having worked full-time as an elementary school
teacher during the time period in question. In addition, the district
court found that the extent of Asha Goel's participation in the initial
negotiations and her behavior in connection with the transaction sug-
gested that she was some sort of equity owner in the business. The
district court found that Asha Goel had participated actively in the
negotiations between the parties and discussed putting money into the
Project and that while neither K.C. nor Asha Goel was ever asked
whether Asha Goel was a shareholder, neither disclosed that she was
not a shareholder. Because it would have been reasonable for Massin-
gale to assume that Asha Goel was an equity owner, the district court
concluded that she should not get a separate salary which would

                    7
reduce the profit from the Project. With regard to the salary payments
to P.K. Goel, the district court found that he performed no services
and concluded, therefore, that salary payments to him were a clear
breach of fiduciary duty.

The district court next considered G&B's claimed entitlement to
overhead. The district court first held that overhead items that are not
specifically tied to the joint venture may not be charged to the Project
in the absence of a specific agreement that overhead expenses would
be charged to the Project. In this case, the district court held that the
items of overhead for which G&B wanted to charge the Project could
not be tied to the joint venture. Therefore, the district court concluded
that they are not recoverable.

Precon and Alliance also submitted at trial a claim for equipment
and supplies totalling $26,000 and $20,000, respectively. The district
court concluded that they had not proved by a preponderance of the
evidence that the equipment was taken or bought by the job. There-
fore, the district court denied this claim, and Precon and Alliance
have not appealed that decision.

Finally, the district court decided to award prejudgment interest to
Precon and Alliance in the amount of 6% per annum on the base
amount of $170,535 it determined G&B owed to Precon and Alliance.
The district court reasoned that the amounts owed to Precon and Alli-
ance were liquidated sums that were due and payable at least by
March 1, 1992, following the completion of the Project. The district
court found further that G&B had acted improperly in not immedi-
ately giving Precon and Alliance an accounting when asked. On July
6, 1995, the district court entered judgment in favor of Precon and
Alliance in the amount of $204,788. From this judgment, G&B now
appeals.

II.

On appeal from a bench trial, we may only set aside findings of
fact if they are clearly erroneous, and we must give due regard to the
opportunity of the district court to judge the credibility of the wit-
nesses. See FED. R. CIV. P. 52(a). "A finding is `clearly erroneous'
when although there is evidence to support it, the reviewing court on

                     8
the entire evidence is left with the definite and firm conviction that
a mistake has been committed." United States v. United States Gyp-
sum Co., 

, 395 (1948). We review the district court's
conclusions of law de novo. Resolution Trust Corp. v. Maplewood
Inv., 

, 1281 n.7 (4th Cir. 1994).

III.

The first issue raised by G&B on appeal is whether the district
court erred when it held that the agreements between the parties in
this case constituted a joint venture under Maryland law. Because
many of the district court's conclusions of law depended on its hold-
ing that the agreements constituted a joint venture, we will address
this issue first.

A.

A joint venture exists under Maryland law4 "when two or more per-
sons combine in a joint business enterprise for their mutual (benefit
with the understanding that they are to share in profits or losses and
that each is to have a voice in its management." Brenner v. Plitt, 

, 857 (Md. 1943). Thus, "[m]ere agreement to share in prof-
its, of itself, constitutes neither a partnership nor a joint [ ]venture."

determination of whether a joint venture exists
"depends upon the intentions of the parties which is to be determined
from the facts of the case and in accordance with ordinary rules gov-
erning interpretation of contracts." Finch v. Hughes Aircraft Co., 

, 890 (Md. Ct. Spec. App.), cert. denied , 

(Md.), and cert. denied, 

(Md. 1984).

B.

Applying these principles to the facts in this case, we agree with
the district court that the agreements between the parties in this case
constituted a joint venture. With regard to the agreement concerning
_________________________________________________________________
4 The parties do not dispute that Maryland law applies to the interpreta-
tion of the agreements at issue in this case. See Kramer v. Bally's Park
Place, Inc., 

, 467 (Md. 1988) ("[T]he law of the jurisdiction
where the contract was made controls its validity and construction.").

                     9
the asbestos removal phase of the Project, the written contract entered
into between Precon and G&B provided explicitly that both profits
and losses from the asbestos removal phase of the Project were to be
"shared equally" between them. In addition, the agreement provided
for each party to have a voice in the management of the venture: Pre-
con and Alliance owner Mr. Massingale was to provide the direction
and day-to-day management of the Project, while G&B, through
either K.C. or Asha Goel, was to provide the financial management
and record keeping. Further, the agreement explicitly provided that
any of the three individuals named above had the authority to commit
expenditures related to the Project. Because the agreement provided
for the sharing of profits and losses and for each party to have a voice
in the management of the enterprise, the district court correctly held
that the agreement constituted a joint venture between Precon and
G&B for the asbestos removal phase of the Project.

Determining whether the agreement between Alliance and G&B
constituted a joint venture under Maryland law is a closer question
because the parties dispute whether Alliance and G&B agreed to
share losses. G&B asserts that Alliance agreed to assume liability for
all losses incurred during the demolition phase of the Project. How-
ever, neither G&B nor Alliance disputes the fact that they agreed to
share profits, nor does either dispute that they both had a voice in the
management of the enterprise. Therefore, the enterprise constitutes a
joint venture under Brenner. See Brenner , 34 A.2d at 857 (defining
joint venture as an association in which "two or more persons com-
bine in a joint enterprise for their mutual benefit with the understand-
ing that they are to share in profits or losses and that each is to have
a voice in its management").

G&B argues, however, that the testimony provided by the parties
during the trial suggests that the parties did not intend to enter into
a joint venture. In particular, G&B cites Massingale's testimony that
there was no contract between Ronald Hsu and a joint venture and his
testimony that while the parties had a profit sharing arrangement, they
were not a joint venture as that term is commonly used. The question
in this case, however, is not whether the parties believed that they had
entered into a joint venture as that term is commonly used, but rather
it is whether the parties intended to enter into an association that con-
stitutes a joint venture as that term is defined under Maryland law. In

                     10
answering this question, we look not only to the facts of the case, but
also to the contracts agreed upon, interpreting them in accordance
with ordinary rules governing the interpretation of contracts. See

. In this case, because it is undisputed that the
parties intended to share profits and the management of the venture
and because the written contract between Precon and G&B states so
explicitly, we agree with the district court that the parties intended to
enter into an association that constitutes a joint venture under Mary-
land law.

IV.

The next issue raised by G&B on appeal is whether the district
court erred when it excluded G&B's home office overhead expenses,
salaries to non-shareholders, and equipment rental costs in calculating
the profit to be shared by the parties. Before we address each of these
contentions in turn, we find it helpful to summarize the nature of a
joint venture relationship.

A.

Partners in a joint venture stand in a fiduciary relationship toward
one another. Herring v. Offutt, 

, 879 (Md. 1972).
According to the Maryland Court of Appeals, "[t]he partnership rela-
tionship is of a fiduciary character which carries with it the require-
ment of utmost good faith and loyalty and the obligation of each
member of the partnership to make full disclosure of all known infor-
mation that is significant and material to the affairs or property of the
partnership." Id.; see also Geo. Bert. Cropper, Inc. v. Wisterco Invest-
ments, Inc., 

, 592 (Md. 1979) (law of partnership applies
to joint ventures). In addition, "the principle of utmost good faith cov-
ers not only dealings and transactions occurring during the partner-
ship but also those taking place during the negotiations leading to the
formation of the partnership." Allen v. Steinberg, 

, 246
(Md. 1966). A joint venture has been described as"`a partnership for
a single transaction,'" 

(citation omitted),
and, thus, differs from a traditional partnership in its limitation to a
discrete project.

                     11
B.

We first address G&B's argument that the district court erred when
it excluded G&B's home office overhead expenses from the calcula-
tion of the profit to be shared by the parties.

1.

Although we have found no Maryland case directly addressing the
impact of the nature of the joint venture relationship on the ability of
a party to charge home office overhead expenses to the joint venture,
we follow the general rule that a partner in a joint venture may not
charge the joint venture for home office overhead expenses. As stated
above, the joint venture relationship is akin to a partnership, but it is
a partnership "for a single transaction." See 

(internal quotation marks and citation omitted) (emphasis added).
Unlike in a general partnership, in which every expense incurred by
one partner affects the other partners, in a joint venture, only expenses
incurred with respect to the particular project affect the other partner.
Therefore, only expenses directly attributable to the specific project
undertaken may be charged to the joint venture. Of course, the parties
may enter into an agreement explicitly permitting home office over-
head to be charged to the joint venture. However, in the absence of
such an agreement, only those charges that are directly attributable to
the specific project may be charged to the joint venture.

The Delaware Supreme Court reached this same conclusion in
Commercial Metals Co. v. Pan Am. Trade & Inv. Corp. , 

(Del. 1960). In Commercial Metals, the Delaware Supreme Court
held that general overhead expenses were properly excluded from the
gross profit of the joint venture where the overhead"represented an
attempt by one joint venturer to charge compensation for services in
providing capital and in providing the organization to handle the
transaction." 

to the Commercial Metals court,
"[t]he general rule is that a coadventurer is not entitled to interest on
capital which he is bound to furnish, nor to general overhead costs
representing an allocation of cost of rendering services in furtherance
of the joint venture." 

2.

Applying these principles to the facts of this case, we note first that
the written contract between Precon and G&B is silent with regard to
home office overhead expenses. Since partners in a joint venture may
not charge the joint venture for costs that are neither permitted by
their agreement nor directly attributable to the joint venture, we agree
with the district court that G&B should not be able to charge the joint
venture for its home office overhead costs. Therefore, the district
court correctly excluded these costs when it calculated the profits to
be divided between the parties.

G&B argues, however, that its contract with Precon was not silent
with regard to overhead expenses. According to G&B, salaries paid
to stockholders are normally carried in the general overhead of a proj-
ect, and since its contract with Precon explicitly excludes such pay-
ments from the calculation of gross profit, the agreement implicitly
permits the inclusion of other forms of overhead in the calculation.
However, salaries paid to stockholders for services rendered to the
joint venture are costs directly attributable to the specific project
undertaken, even if not allowed, while overhead expenses such as
home office expenses are not directly attributable to the project.
Rather, home office expenses are a cost of doing business in general.5
Therefore, even if the contract can be construed as permitting the par-
ties to charge the joint venture costs other than shareholder salaries
that are directly attributable to the venture, it is silent with regard to
home office overhead expenses. In the face of such silence, these
expenses must be excluded from the calculation of profit.

C.

Bearing in mind the fiduciary nature of the relationship between
partners in a joint venture, we also agree with the district court that
the $10,000 paid to P.K. Goel and the $12,000 paid to Asha Goel as
_________________________________________________________________
5 This point is illustrated by G&B's method of calculating general over-
head expenses which is to divide the total company operating expenses
by the total project expenses. In this case, the overhead rate to be charged
was initially calculated at 31.87%, was reduced to 14.3% just prior to
trial, and was further reduced to 13.8% at trial.

                     13
salary payments should not be considered an expense to the Project
when calculating the profit to be shared by the parties. As noted
above, the district court found that P.K. Goel provided no services to
the Project. Therefore, there is no question but that G&B violated its
fiduciary duty toward Precon and Alliance when it used revenue from
the Project to pay P.K. Goel for services that he never provided.

Similarly, we agree with the district court that the salary payments
made to Asha Goel should be excluded when calculating the profit to
be shared by the parties. As noted above, according to the provisions
of the written contract between G&B and Precon, no payment would
be made for services rendered by the shareholders of G&B and Pre-
con. Instead, any salary paid to shareholders would be treated as a dis-
tribution of profits. On the other hand, payments to non-shareholders
would be treated as an expense when calculating profit and, therefore,
would reduce the amount of net profit.

In this case, the district court found that Asha Goel held herself out
as an equity owner in G&B by participating actively in the negotia-
tions between the parties and by telling Massingale that she was pro-
viding funds for the Project. In addition, the written agreement
between Precon and G&B places Asha Goel on par with the corpora-
tions' presidents and shareholders by giving her the authority to com-
mit expenditures on behalf of the joint venture and by naming her,
along with K.C. Goel, as responsible for the financial management of
the Project.

Given that the agreement included a provision expressly excluding
shareholder salaries as an expense that could be charged to the Project
when calculating profit and the district court's finding that Asha Goel
held herself out as an equity owner of G&B, we agree that K.C. Goel,
as the president of G&B and as G&B's primary representative during
the negotiations, had a fiduciary duty to disclose that Asha Goel was
not a shareholder of G&B. As the Maryland Court of Appeals has
stated, "the principle of utmost good faith covers not only dealings
and transactions occurring during the partnership but also those taking
place during the negotiations leading to the formation of the partner-
ship." 

. In addition, the fiduciary relationship
between partners includes "the obligation of each member of the part-
nership to make full disclosure of all known information that is signif-

                    14
icant and material to the affairs or property of the partnership."

.

In this case, K.C. and Asha Goel did not act according to the prin-
ciple of utmost good faith during the negotiations when they held
Asha Goel out as a shareholder of G&B and then failed to clarify her
status, despite contractual provisions under which her status as non-
shareholder would affect the profits of the joint venture. Therefore,
the district court correctly excluded the $12,000 paid to her as salary
from the calculation of profit to be shared by the parties.

D.

G&B's final contention with regard to the district court's exclusion
of certain costs from the calculation of the shared profit is that the dis-
trict court improperly excluded G&B's equipment rental costs when
it calculated the profit to be shared by the parties. Although G&B
acknowledges that it initially included its equipment costs in its home
office overhead, which we have held was properly excluded by the
district court, G&B contends that it submitted alternative evidence to
the district court detailing the various pieces of equipment sent to the
Project by G&B and the equipment rental cost of each piece of equip-
ment at 80% of the market rate. These costs, G&B argues, should
have been included in the calculation of the profit, even if other por-
tions of the home office overhead were properly excluded, because
the written contract between Precon and G&B expressly provides that
"[f]or rental of equipment, each entity will charge the [P]roject its
lowest rate, typically eighty percent of the market rates." (J.A. at 14).

We agree with G&B that the district court erred when it failed to
include rental equipment costs at 80% of the market rate in the calcu-
lation of the profit to be shared by the parties. As correctly noted by
G&B, the written contract between Precon and G&B expressly pro-
vides that each entity would charge the Project its lowest rate for the
rental of equipment to the Project, typically 80% of the market rate.
In this case, G&B has submitted unrefuted evidence that it loaned a
significant amount of equipment to the Project and that 80% of its
rental market rate was $63,432. While G&B initially included these
costs in its home office overhead and, thus, did not submit a separate
claim for them to either Precon or Alliance, the agreements between

                     15
the parties expressly provide that such costs may be charged to the
Project. Therefore, the district court should have included these costs
when calculating the profit to be shared by the parties in this case.

V.

G&B next asserts that the district court erred when it interpreted
the agreements to require that Precon assume only 50% of the losses
attributable to the demolition phase of the Project. According to
G&B, Alliance agreed to bear 100% of any losses incurred during the
demolition phase of the Project, and Precon later assumed that
responsibility when it agreed to bear responsibility for Alliance's
share of any losses in the amendment to its agreement with G&B. As
a result of this alleged misinterpretation, G&B argues that the district
court failed to allocate 100% of the losses incurred during the demoli-
tion phase of the Project to Precon and Alliance.

This dispute is moot, however, under our earlier holding that G&B
is not permitted to charge the Project for home office overhead.
According to G&B's own calculations presented to the district court,
it charged $113,584 in home office overhead to the demolition phase
of the Project, and that phase of the Project incurred losses totaling
$97,799. If home office overhead is omitted as a cost charged to the
Project, the demolition phase of the Project incurred no losses, but
rather generated a profit of $15,785. Since no losses can, therefore,
be attributed to the demolition phase of the Project, the allocation of
responsibility for any such losses is a moot point.

VI.

Finally, G&B asserts that the district court abused its discretion
when it awarded Precon and Alliance prejudgment interest. The dis-
trict court awarded prejudgment interest at a rate of 6% per annum
based on its conclusion that G&B had breached its fiduciary duty
toward Precon and Alliance and had withheld payment on a sum that
was liquidated and due at least as of March 1, 1992. G&B argues that
the district court's choice of March 1, 1992 as the date from which
prejudgment interest would be calculated was arbitrary and that the
sum owed to Precon and Alliance was not liquidated until after the
district court issued its decision. We disagree.

                    16
A.

The award of prejudgment interest is recoverable as a matter of
right in some circumstances. See I.W. Berman Prop. v. Porter Bros.,
Inc., 

, 75 (Md. 1975) (prejudgment interest recoverable
as matter of right under contracts in writing to pay money on certain
day). However, "[t]he award of prejudgment interest is generally left
to the discretion of the trial judge" and is"based on the `equity and
justice appearing between the parties and a consideration of all the
circumstances.'" Agnew v. Maryland, 

, 447 (Md. App.
1982) (citation omitted).

B.

We hold that the district court acted within its discretion when it
awarded 6% per annum prejudgment interest to Precon and Alliance
from March 1, 1992. In accordance with the principles set forth
above, the district court explicitly based its award of prejudgment
interest on a consideration of all of the circumstances in this case and
on its conclusion that G&B had violated its fiduciary duty toward Pre-
con and Alliance. We affirm both the award and the date from which
interest is to be calculated as properly within the district court's dis-
cretion.

VII.

For the reasons set forth above, we affirm in part the district court's
judgment in favor of Precon and Alliance. We hold, however, that the
judgment should be modified to take into account equipment rental
costs incurred by G&B and expressly permitted by the agreements at
issue. Therefore, we affirm in part, vacate in part, and remand for the
district court to modify the judgment consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED

                    17