                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 AMERICAN PROPERTY
 CONSTRUCTION COMPANY,

           Plaintiff/Counter-Defendant,
                                                          Civil Action No. 09-01232 (CKK)
      v.

 SPRENGER LANG FOUNDATION, et al.,

           Defendants/Counter-Plaintiffs.


                                  MEMORANDUM OPINION
                                      (March 8, 2011)

       This action involves a relatively straightforward contract dispute about construction

services. Plaintiff/Counter-Defendant American Property Construction Company (“APCC”)

commenced suit against Defendants/Counter-Plaintiffs Paul Sprenger (“Sprenger”), Jane Lang

(“Lang”), and the Sprenger Lang Foundation (collectively, “Defendants”), asserting claims for

breach of express and implied contract based upon Defendants’ alleged failure to remit payment

for construction services provided by APCC. Through this action, APCC seeks to recover

monetary damages in the amount of $339,727.50, exclusive of interest, as recompense for

services provided. Presently before the Court is Sprenger and Lang’s [37] Motion for Partial

Summary Judgment,1 which is directed towards challenging a discrete component of APCC’s

breach of contract claims—namely, a so-called “contingency” line item in the amount of

$85,830. Contending that there was no “meeting of the minds” as to the “contingency” line item,

Sprenger and Lang assert that summary judgment should be entered in their favor on this limited




       1
           The Sprenger Lang Foundation does not join in the motion.
issue. Based upon the parties’ submissions, the attachments thereto, the relevant authorities, and

the record as a whole, the Court concludes that there remains a genuine dispute as to the meaning

that the parties’ attached to the “contingency” line item and, accordingly, Sprenger and Lang’s

[37] Motion for Partial Summary Judgment shall be DENIED.2

                                       I. BACKGROUND

       APCC commenced this action against Defendants on July 2, 2009, asserting claims for

breach of express and implied contract. See Compl., Docket No. [1]. From APCC’s perspective,

this action is a “straightforward collection case.” Pl.’s Opp’n at 1. As set forth in the Complaint,

APCC alleges that it was engaged by Defendants to provide general contracting services on an

office building located at 1614 20th Street, N.W., Washington, D.C. 20009 (the “Property”).

APCC contends that, despite satisfactorily performing the work as agreed, Defendants have

failed to make full payment for services rendered. See generally Compl. Through the instant

action, APCC seeks monetary damages in the amount of $339,727.50, exclusive of interest, a

sum that accounts for a so-called “contingency” line item in the amount of $85,830. The nature

of the “contingency” line item, and whether APCC may claim an entitlement thereto, is the

subject of the present Motion for Partial Summary Judgment.3


       2
          While the Court renders its decision today on the record as a whole, its consideration
has focused on the following documents, listed in chronological order of their filing: Mem. of P.
& A. in Supp. of Mot. for Partial Summ. J. by Jane Lang and Paul Sprenger (“Indiv. Defs.’
Mem.”), Docket No. [37]; Stmt. of Material Facts Not in Dispute (“Indiv. Defs.’ Stmt.”), Docket
No. [37]; Aff. of Jane Lang (“Lang Decl.”), Docket No. [37-1]; Mem. in Opp’n to the Mot. for
Partial Summ. J. of Jane Lang and Paul Sprenger (“Pl.’s Opp’n”), Docket No. [40]; Pl.’s Opp’n
at 2-7 (“Pl.’s Stmt.”); Decl. of Allan Sherman (“Sherman Decl.”), Docket No. [40-2]; Defs.’
Reply to Pl.’s Opp’n to Mot. for Partial Summ. J. (“Indiv. Defs.’ Reply”), Docket No. [44].
       3
         While the parties sharply dispute APCC’s ultimate entitlement to the “contingency”
amount, there is surprisingly little disagreement as to the relevant facts. Unless otherwise

                                                 2
       It is undisputed that the parties never entered into a formal, written agreement governing

the terms and conditions of the work to be performed by APCC.4 Indiv. Defs.’ Stmt. ¶ 2; Pl.’s

Stmt. ¶ 2. Regardless, APCC performed construction work at the Property over an extended

period of time and, prior to commencing that work, prepared a written estimate as to the

anticipated costs and expenses. Indiv. Defs.’ Stmt. ¶ 5; Pl.’s Stmt. ¶ 5. The “initial budgeting

spreadsheet,” as it is characterized by APCC, identifies the bid-date as November 2, 2006 and

places the total estimated cost for the contemplated construction services at $2,472,548. Pl.’s

Stmt. Ex. F at APC-00030.5 Following three pages of itemized expenditures, the written estimate

divides the total estimated cost into eight categories:

                                Description           Estimate
                                Labor                 $440,900
                                Material              $173,422



indicated, the narrative that follows rests on undisputed facts or those facts as to which there can
be no genuine dispute, viewing the evidence in the light most favorable to APCC as the non-
movant.
       4
          While APCC at one point created a proposed contract, it never proceeded beyond draft
form. Indiv. Defs.’ Stmt. ¶ 2 & Ex. A; Pl.’s Stmt. ¶ 2. The draft agreement sheds no light on the
discrete issue presently before the Court.
       5
           Although they do not dispute either that APCC prepared a written estimate in
connection with the contemplated work or that the written estimate included the specific
“contingency” line item at issue, Indiv. Defs.’ Stmt. ¶ 5, Sprenger and Lang neglected to include
the written estimate as an exhibit to their moving papers. APCC, however, included with its
opposition papers what it contends is the “initial budgeting spreadsheet.” Pl.’s Stmt. ¶ 3 & Ex. F.
In reply, Sprenger and Lang never suggest that the proffered spreadsheet is anything other than
the written estimate spoken of by both parties, see generally Indiv. Defs.’ Reply, and the Court
assumes this to be the case for purposes of the present motion. In any event, viewing the
evidence in the light most favorable to APCC as the non-movant, it is justifiable to infer that the
exhibit is what it is claimed to be—namely, the written estimate exchanged between the parties
prior to the commencement of the contemplated services.

                                                  3
                                Subcontract          $1,386,715
                                Equipment            $26,950
                                Other                $178,668
                                Overhead             $88,266
                                Profit               $91,797
                                Contingency          $85,830
                                Total                $2,472,548

Pl.’s Stmt. Ex. F at APC-00030. As set forth in the written estimate, the final three

categories—overhead, profit, and contingency—are segregated from the remaining five. Id. The

“contingency” line item, estimated at $85,830, is the sole focus of the present motion.

       Despite the absence of a formal contract governing the parties’ relationship, APCC

performed construction work at the Property and, during the course of its work, submitted

thirteen applications for payment. Indiv. Defs.’ Stmt. ¶ 3; Pl.’s Stmt. ¶ 3. All thirteen

applications, submitted more or less on a monthly basis over the period of approximately one

year and seven months extending from December 31, 2006 through August 6, 2008, consistently

identified the “scheduled value” for the “contingency” line item as $85,830. Indiv. Defs.’ Stmt. ¶

3; Pl.’s Stmt. ¶ 3 & Ex. G at APC-00145 (Dec. 31, 2006 Appl.), APC-00126 (Jan. 31, 2007

Appl.), APC-00121 (Feb. 28, 2007 Appl.), APC-00111 (Mar. 31, 2007 Appl.), APC-00102 (May

31, 2007 Appl.), APC-00092 (June 30, 2007 Appl.), APC-00077 (Aug. 31, 2007 Appl.), APC-

00067 (Sept. 30, 2007 Appl.), APC-00060 (Oct. 31, 2007 Appl.), APC-00052 (Feb. 18, 2008

Appl.), APC-00043 (Apr. 28, 2008 Appl.), APC-00036 (June 2, 2008 Appl.), APC-00308 (Aug.

6, 2008 Appl.). While the “contingency” line item was consistently identified over time, it is

undisputed that APCC did not actually seek payment for the “contingency” amount until it


                                                 4
submitted its final two applications for payment: an application for payment dated June 2, 2008

sought payment for $40,000 of the “contingency;” and an application for payment dated August

6, 2008 sought payment for the remaining $45,830. Indiv. Defs.’ Stmt. ¶ 3; Pl.’s Stmt. ¶¶ 3, 10

& Ex. G at APC-00036 (June 2, 2008 Appl.), APC-00308 (Aug. 6, 2008 Appl.). Sprenger and

Lang never paid the designated amounts. Indiv. Defs.’ Stmt. ¶ 10; Pl.’s Stmt. ¶ 10.

                                     II. LEGAL STANDARD

        Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and [that it] . . . is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact, and therefore “[o]nly disputes

over facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). Nor may summary judgment be avoided based on just any disagreement as to the

relevant facts; the dispute must be “genuine,” meaning that there must be sufficient admissible

evidence for a reasonable trier of fact to find for the non-movant. Id.

        In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of its position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual

basis in the record cannot create a genuine dispute sufficient to survive summary judgment.

Ass’n of Flight Attendants-CWA v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).


                                                   5
Moreover, where “a party fails to properly support an assertion of fact or fails to properly address

another party’s assertion of fact,” the district court may “consider the fact undisputed for

purposes of the motion.” Fed. R. Civ. P. 56(e).

       When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty

Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477

U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is

some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not

sufficiently probative, summary judgment may be granted,” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted).

                                        III. DISCUSSION

       Under District of Columbia law,6 the party asserting the existence of an enforceable

contract bears the burden of proving that there has been a “meeting of the minds,” or mutual

assent, as to all material terms. Ekedahl v. COREStaff, Inc., 183 F.3d 855, 858 (D.C. Cir. 1999).


       6
         Both parties assume that District of Columbia law applies to the claims at issue, and the
Court need not question the parties’ assumption. Himes v. Medstar-Georgetown Univ. Med. Ctr.,
__ F. Supp. 2d __, 2010 WL 4879438, at *4 n.3 (D.D.C. Dec. 1, 2010).

                                                  6
Without a “meeting of the minds” as to all material terms, there can be no enforceable contract.

Bailey v. Fed. Nat’l Mortg. Ass’n, 209 F.3d 740, 746 (D.C. Cir. 2000) (citing Jack Baker, Inc. v.

Office Space Dev. Corp., 664 A.2d 1236, 1238 (D.C. 1995)). While mutual assent is “most

clearly evidenced by the terms of a signed written agreement,” a signed agreement is not

indispensable, Kramer Assocs., Inc. v. Ikam, Ltd., 888 A.2d 247, 252 (D.C. 2005) (internal

quotation marks omitted); proof of a meeting of the minds may also be found “in the parties’

actions at the time of contract formation,” Ekedahl, 183 F.3d at 858. Indeed, “[w]here an

ambiguity is present, the intent and understanding of the parties is of critical importance,” which

entails “a probing inquiry into the understanding of each party to the alleged contract regarding

its meaning and effect.” Howard Univ. v. Lacy, 828 A.2d 733, 737 (D.C. 2003). Often this

requires resort to evidence concerning the circumstances surrounding the making of the contract,

including preliminary negotiations and discussions, customary practices of which either party

knows or has reason to know, and the course of conduct of the parties under the contract. In re

Bailey, 883 A.2d 106, 118 (D.C. 2005). In the instant case, Sprenger and Lang maintain that

there was no “meeting of the minds” as to the “contingency” line item. The Court concludes that

genuine factual disputes preclude a definitive finding one way or the other based on the skeletal

record created by the parties and shall therefore DENY Sprenger and Lang’s [37] Motion for

Partial Summary Judgment.

       Before reaching the contested issues, it is important to emphasize what is not genuinely in

dispute. Although never fully acknowledged in the parties’ briefing, both sides clearly shared an

understanding as to the underlying purpose of the “contingency” line item. That is, both parties

understood that the $85,830 amount, or at least some portion thereof, would be used to cover


                                                 7
unanticipated costs incurred by APCC in the course of performing the services for which it was

engaged. Indiv. Defs.’ Stmt. ¶ 5; Pl.’s Stmt. ¶ 7. Allan Sherman (“Sherman”), the President and

Founding Principal of APCC and the Project Manager for the construction work at the Property,

submits his view that a “contingency” is an “industry standard” device designed to cover

unanticipated costs, such as changes and modifications that arise during the course of

construction. Sherman Decl. ¶¶ 21-22, 30. In this way, the “contingency” amount serves as a

cushion to absorb unanticipated costs, and allows the parties to rely on the predetermined and

budgeted contingency amount in lieu of issuing updated invoices or “change orders.” Id. ¶¶ 22-

23. Sprenger and Lang’s purported understanding of the “contingency” amount—i.e., that it was

a means to account for “unexpected expenses that might occur during the course of the project,”

Indiv. Defs.’ Stmt. ¶ 5 (citing Dep. of Jane Lang (“Lang Dep.”), Docket No. [37-7], at 155-

57)—is not materially different. In short, everyone understood the function of the “contingency”

line item.7 What is less clear is whether the parties intended to require APCC to document and

justify any unanticipated costs and impute them to the $85,830 amount, and whether the parties

intended the unused balance, if any, to inure to the benefit of APCC or, alternatively, to Sprenger

and Lang. Unfortunately, the record created by the parties sheds little light on either question.

       There is no doubt that, in arguing the merits of the present motion, the parties have put



       7
           For this reason, it is somewhat perplexing that Sprenger and Lang so forcefully argue
that the “plain, common-sense definition” of the term “contingency” requires summary judgment
in their favor. Indiv. Defs.’ Reply at 2. The argument misses the mark for the simple reason that
nobody disputes that the expenses themselves were “contingent,” in that they were uncertain to
be incurred; but that does not answer the question of whether the parties intended APCC to
justify and account for such expenses, in the event they were incurred, or the question of which
party was entitled to the balance in the further contingency that the full $85,830 was not depleted
in covering unanticipated costs.

                                                 8
forward conflicting interpretations of the “contingency” amount and how it would be used during

the course of the parties’ relationship. On the one hand, APCC contends that the “contingency”

amount operates more or less like a preset discretionary fund designed to afford the contractor

with some flexibility in absorbing the unanticipated but inevitable costs encountered in the

course of any given construction project without cutting into its agreed-upon profit. Sherman

Decl. ¶¶ 23-24. Consistent with this view, APCC readily concedes that it has never attempted to

itemize the makeup of the $85,830 “contingency” amount, explaining that “contingency by

definition . . . does not cover any specific item.” Id. ¶ 24. Viewed from a slightly different

perspective, APCC construes the “contingency” line item as akin to a form of profit, with the

principal difference being that there is a presumption that monies allocated for “contingencies”

will be used to cover unexpected costs, but that any unused balance nevertheless inures to the

contractor’s benefit. On the other hand, while they do not dispute that the “contingency” line

item was designed to cover unexpected expenses or that those expenses were initially projected

to be $85,830, Sprenger and Lang nevertheless maintain that there was no agreement to “pay any

‘contingency’ amount without receiving a full explanation of same at the time the ‘contingency’

or unforeseen expense arose.” Lang Decl. ¶ 4. In other words, so far as the Court can tell,

Sprenger and Lang assert that the “contingency” amount would be set aside as a projection of

costs unforeseen at the time of the estimate, but that APCC would have to specifically account

for and deduct those costs from the “contingency” amount as they arose, and that any remaining

balance would inure to their benefit.8 Indiv. Defs.’ Reply at 2.


       8
         Whether APCC actually made an effort to explain which expenses were being covered
by the “contingency” amount is disputed. On the one hand, Lang avers, with no further
explanation, that APCC never identified any particular item that would be attributed to the

                                                 9
       While neither interpretation is facially implausible, the problem is that there is virtually

no evidence in the record as to what the parties’ understandings actually were at the time of

contracting and whether those understandings were reasonable. These gaps in the record are fatal

for Sprenger and Lang’s Motion for Partial Summary Judgment because the question of whether

there has been a “meeting of the minds” must be approached with an eye towards the contracting

parties’ understanding of their agreement “at the time the contract was made,” Sun Secured Fin.

LLC v. ARCS Commercial Mortg. Co. LP, 730 F. Supp. 2d 132, 137 (D.D.C. 2010), and while

the parties’ subjective intent may sometimes be relevant in determining whether there has been

mutual assent to all material terms, the inquiry nevertheless turns on how a reasonable person in

the position of the parties would have understood the agreement, Akassy v. William Penn

Apartments Ltd. P’ship, 891 A.2d 291, 299 (D.C. 2006) (internal quotation marks omitted).

       Relying exclusively on Lang’s deposition testimony, Sprenger and Lang contend that “it

was [] Lang’s understanding that the reference [to a “contingency” in APCC’s written estimate]

was to unexpected expenses that might occur during the course of the project, and that any

discussion of such charges would not occur until such time as such expenses were incurred.”

Indiv. Defs.’ Stmt. ¶ 5 (citing Lang Dep. at 155-57). The cited testimony, however, does not

clearly evidence Lang’s understanding at the time APCC was engaged to perform construction



“contingency” amount. Lang Decl. ¶ 3. On the other hand, Sherman maintains that he frequently
informed Sprenger and Lang that some unspecified universe of expenses, otherwise unbilled,
were being covered by the “contingency” amount, and that APCC sometimes performed so-
called “change order” requests free of charge as a courtesy and in reliance on the existence of the
agreed-upon “contingency” amount. Sherman Decl. ¶ 27. Neither party submits any evidence in
support of their positions beyond these dueling and rather generalized declarations. On this
record, the Court cannot resolve the dispute, which, in any event, is largely immaterial because
APCC has taken the position in this litigation that it was under no obligation to document or
explain the expenses covered by the “contingency” amount.

                                                 10
services. In fact, it is entirely equivocal:

                Q.      Let me move on to this last number, the contingency number,
                        $85,000 [sic]. Why has that been deducted from the contract?

                A.      I — My recollection is not clear on this, but I believe — there
                        was an allowance that — I really can’t answer that clearly
                        right now. I just — I just don’t remember. But there was an
                        allowance taken and — for contingencies that was [sic]
                        unexplained.

                                                 ....

                        In [APCC’s] budget, there was a contingency or contingencies
                        — I don’t remember how it was described — and that my
                        recollection is it was unexplained and — that portion of it.

                Q.      Okay. Did you ever dispute the contingency amount . . . .?

                A.      Well, a contingency at the beginning in a budget is just a
                        contingency. It’s not something to dispute.

                Q.      Did you ever ask for clarification on the contingency, on what
                        it was [before the work started]?

                                                ....

                A.      Well, my understanding of a contingency is just that it’s sort
                        of like a, you know, possible — to cover things that you don’t
                        expect or that you don’t know about.

                                                ....

                Q.      Okay. Kind of like the unforeseeable?

                A.      That’s my understanding.

Lang Dep. at 155-57. Simply put, the testimony relied upon by Sprenger and Lang sheds no light

on what Lang’s understanding of the “contingency” line item was at the time of contracting, apart

from the fact that she understood that it was intended to cover unanticipated expenses. The

testimony offers nothing in the way of answering whether the parties intended to require APCC

to specifically document and justify any unanticipated costs and impute them to the $85,830

                                                  11
amount, and whether the parties intended the unused balance, if any, to inure to the benefit of

APCC or, alternatively, to Sprenger and Lang.9

       Even assuming, arguendo, that there was competent evidence in the record establishing

with some meaningful measure of clarity what Lang’s subjective understanding of the

“contingency” line item was at the time APCC was engaged, at least one further wrinkle would

still preclude summary judgment. Specifically, the parties dispute whether Lang was the sole

representative of the owners of the Property with respect to the construction project. Indiv.

Defs.’ Stmt. ¶ 4; Pl.’s Stmt. ¶ 4. While Lang may have been, and in truth likely was, the primary

point-of-contact between the owners and APCC, Lang’s ipse dixit that she represented the

owners in “substantially all dealings,” Lang Decl. ¶ 1, is belied by evidence suggesting that

others, including Sprenger and employees of the Sprenger Lang Foundation, actively interacted



       9
           To the extent Sprenger and Lang intended to rely upon Lang’s cursory five-paragraph
declaration as additional evidence in support of their contention that their contemporaneous
understanding was that APCC was required to document and justify any unanticipated costs, they
failed to identify it as such in their Statement of Material Facts Not in Dispute. See Indiv. Defs.’
Stmt. ¶ 5; see also Local Rule LCvR 7(h)(1) (providing that parties must include specific
“references to parts of the record relied on to support” their factual contentions). Regardless,
while Lang asserts in her declaration that “[a]t no time did [she and Sprenger] enter into any oral
agreement with [APCC] . . . [to] pay any ‘contingency’ without receiving a full explanation of
the same at the time the ‘contingency’ or unforeseen expense arose,” Lang Decl. ¶ 4, that
assertion is entirely conclusory and devoid of any factual basis and, as such, is insufficient to
warrant summary judgment in Sprenger and Lang’s favor. Cf. Ass’n of Flight Attendants-CWA,
564 F.3d at 465-66 (conclusory assertions offered without any factual basis in the record cannot
create a genuine dispute sufficient to survive summary judgment). Furthermore, while not so
clearly inconsistent with Lang’s prior deposition testimony such that would warrant disregarding
it altogether as a “sham affidavit,” St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection,
Inc., 573 F. Supp. 2d 152, 160-61 (D.D.C. 2008), aff’d, 630 F.3d 217 (D.C. Cir. 2011), Lang’s
declaration makes no attempt to explain why her recollection of the “contingency” line item has
improved in the time since she sat for her deposition. Without some credible explanation for the
change, the Court cannot credit Lang’s recent declaration to the exclusion of her prior deposition
testimony.

                                                 12
with APCC and its employees throughout the course of the construction project. Indiv. Defs.’

Stmt. ¶ 4; Pl.’s Stmt. ¶ 4 & Ex. D at SL0000997, SL0001016, SL0001064, SL0001068,

SL0001236, SL0001360; Lang Dep. at 34-35; Sherman Decl. ¶¶ 10, 19. The extent and scope of

those interactions are not established in the record. It may very well be the case that only Lang

wielded contracting authority, but the question simply cannot be answered as a matter of law

based on the present record.

       In the final analysis, the record in this case has been so poorly developed by the parties

that the Court cannot say, one way or the other, whether there was a “meeting of the minds”

under these circumstances. Where, as here, there is no unambiguous writing governing the

parties’ relationship, the law requires a “probing inquiry” into each party’s understanding,

Howard Univ., 828 A.2d at 737, but the parties have failed to come forward with the sort of raw

factual material or cogent argument that would permit such an inquiry. Simply by way of

example, neither party even bothers to explain how the $85,830 figure, which comprises roughly

3.5% of the overall estimated cost of the services to be provided by APCC, came into being.

Similarly, even though the thirteen applications for payment submitted by APCC consistently

identified the $85,830 amount as part of the “original contract sum,” Pl.’s Stmt. Ex. G, and even

though the “contingency” line item appears in the initial written estimate alongside the line items

for “profit” and “overhead,” Pl.’s Stmt. Ex. F at APC-00030, two items that typically do not

require specific itemization, Sprenger and Lang never really offer any explanation as to why they

may have reasonably understood the “contingency” to be anything other than what APCC claims

it to be. At the same time, while APCC suggests in passing that the inclusion of a “contingency”

amount in agreements of this type is “industry standard,” Sherman Decl. ¶ 30, it adduces no



                                                13
evidence in support of that claim or even attempts to explain how the “contingency” amount in

this case aligns with the purported industry standard.10 This is potentially significant because, in

ascertaining the parties’ intent, resort is often made to customary practices of which either party

knows or has reason to know. In re Bailey, 883 A.2d at 118. The Court shall not belabor the

point; it has taken the parties’ arguments as far as the record will allow, although that is

decidedly not very far. Based on the present record, Sprenger and Lang have failed to establish

their entitlement to judgment as a matter of law.11




       10
            Based on the Court’s own review of the case law, APCC’s interpretation appears to
have some merit. See In re Stone & Webster, Inc., 279 B.R. 748, 801 (Bankr. D. Del. 2002) (“[I]t
is proper to include in the damages award reasonable contingency amounts that are part of the
construction estimate;” although they “cannot be precisely calculated,” they are “known
unknown[s].”); Sher v. Lafayette Ins. Co., 988 So. 2d 186, 205 (La. 2008) (upholding jury award
for building damages that included an allowance for unspecified “contingency costs,” where
plaintiff’s expert testified that they were “real, foreseeable, but unidentified costs”); see also
Steven G.M. Stein, Construction Law, § 3A.08 (LexisNexis Matthew Bender 2010) (“When
construction is performed on a lump-sum basis, the contractor usually includes some contingency
funds in his price for delays, reperformance of defective work, losses not compensated by
insurance . . ., and other such events. If these contingencies do not occur, they result is additional
profit to the contractor, and appropriately so, because he undertook the risks associated with
these matters.”). Should this question arise again at trial, the parties should be prepared to
support their respective positions with citations to relevant case law, preferably from courts
within this Circuit.
       11
          Although afforded sparse attention in the parties’ papers, and left entirely unaddressed
in Sprenger and Lang’s reply papers, see generally Indiv. Defs.’ Reply, the deficiencies in the
record identified above similarly preclude judgment as a matter of law to the extent APCC’s
claims sound in quasi-contract, as the Court cannot say on this record that a reasonable fact-
finder could not conclude that the “contingency” amount represents, in part, the valuable services
rendered or benefit conferred by APCC to Sprenger and Lang. See Plesha v. Ferguson, 725 F.
Supp. 2d 106, 111 (D.D.C. 2010) (identifying the elements of claims for quantum meruit and
unjust enrichment).

                                                  14
                                      IV. CONCLUSION

       The Court has considered the remaining arguments tendered by the parties and has

concluded that they are without merit. Therefore, and for the reasons set forth above, the Court

shall DENY Sprenger and Lang’s [37] Motion for Summary Judgment. An appropriate Order

accompanies this Memorandum Opinion.



Date: March 8, 2011
                                                            /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    United States District Judge




                                               15
