                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 07-1084



BARCLAY WHITE SKANSKA, INCORPORATED,

                                               Plaintiff - Appellant,

           versus


BATTELLE MEMORIAL INSTITUTE,

                                                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:04-cv-03864-RDB)


Argued:   October 31, 2007                 Decided:   January 29, 2008


Before TRAXLER and GREGORY, Circuit Judges, and Jerome B. FRIEDMAN,
United States District Judge for the Eastern District of Virginia,
sitting by designation.


Affirmed in part; reversed and remanded in part by unpublished
opinion. Judge Gregory wrote the opinion, in which Judge Traxler
and Judge Friedman joined.


ARGUED: Allen Tupper Brown, II, Gill, Massachusetts, for Appellant.
Ava Elaine Lias-Booker, MCGUIREWOODS, L.L.P., Baltimore, Maryland;
William Harrison Baxter, II, MCGUIREWOODS, L.L.P., Richmond,
Virginia, for Appellee.    ON BRIEF: Andrew Jay Graham, KRAMON &
GRAHAM, Baltimore, Maryland; Edward Seglias, COHEN, SEGLIAS,
PALLAS, GREENHALL & FURMAN, P.C., Philadelphia, Pennsylvania, for
Appellant.
Unpublished opinions are not binding precedent in this circuit.




                                2
GREGORY, Circuit Judge:

     This case involves whether a plaintiff contractor presented

genuine issues of material fact, sufficient to overcome the owner

defendant’s motion for summary judgment.     We hold that it did.

Accordingly, we reverse the district court’s grant of summary

judgment with respect to $300,000 withheld for alleged incomplete

work, for the failure to execute the approved change orders, and

for general costs; however, we affirm the district court’s grant of

summary judgment with respect to the disputed change orders, and

remand for proceedings consistent with this opinion.



                                I.

     Barclay White Skanska, Inc. (“Barclay White”), and Battelle

Memorial Institute (“Battelle”) negotiated a construction contract,

which provided that Battelle would pay Barclay White a contractor’s

fee and the cost of work to manage the construction of a technology

center. The contract included a “Guaranteed Maximum Price” (“GMP”)

of $13,350,000.1   Battelle, however, could request an increase in

the scope of the work, which would increase Barclay White’s costs,


     1
      The GMP represented the maximum Barclay White could be paid
for all costs and fees. It was calculated as follows:
     38 Subcontractor Bid Packages:              $11,719,015
     Contingency:                                    450,000
     General Conditions:                             864,735
     Contractor’s Fee:                               316,250
     GMP (Total):                                $13,350,000



                                 3
and in turn raise the GMP.     This process was done through change

orders:   Barclay White would submit a request for a change order,2

Battelle would approve or deny the request, and the GMP would be

adjusted accordingly.

     During construction, Barclay White submitted several change

order requests with regard to the additional work and its costs,

which Battelle approved.3     However, Battelle did not execute the

approved change orders and the GMP never increased.4

     In Spring 2003, Barclay White submitted its last payment

application, valuing the contract at $13,426,444.72.5         Conversely,

according   to   Battelle,   the   company   owed   Barclay   White   only

$13,224,405.6    On May 10, 2004, Battelle responded to Barclay


     2
      First, Barclay White would submit a “Potential Change Order
Notification” (“PCO”) describing the new work and estimating the
cost.   After the cost had been determined, Barclay White would
submit a “Change Order Request” (“COR”) for approval by Battelle.
     3
      Barclay White alleges that Battelle’s own records indicate it
approved over a million dollars worth of change order requests.
(Appellant’s Br. 8, J.A. 1146.)
     4
      Battelle paid the change orders as they were submitted.
Payment is not at issue in this case.
     5
      Barclay White’s final payment application calculated:
     Total Reimbursable Costs Plus Fee:   $13,426,444.72
     Total Retainage:                        -170,230.26
     Amount Already Paid by Battelle:     -12,102,951.42
     Requested Payment:                   $ 1,153,263.04
(J.A. 1139.) According to Barclay White, the final payment would
have included a “[b]alance to finish including retainage” of
$93,785.54.
     6
      Conversely, Battelle’s calculated:
     Total Reimbursable Costs Plus Fee:        $13,524,405

                                    4
White’s   last   payment   application   with   a   letter   and   final

installment payment of $387,315, indicating that after being paid

that amount, Barclay White would have been paid in full for its

work under the contract.   (J.A. 80.)    Battelle arrived at the final

amount by subtracting the installment payments made to Barclay

White in the course of construction, as well as an additional

$300,000 for incomplete work, from the total contract amount.       See

supra note 6.

     On June 4, 2004, Barclay White replied with a letter stating

it did not accept the check as final payment for the project.

Barclay White then filed its original complaint in Maryland court,

alleging that Battelle had not paid Barclay White for the costs

associated with two particular change orders and that Battelle had

withheld the balance of the contract by failing to pay Barclay

White the entire GMP. The original complaint contained a breach of

contract claim for nonpayment of the change orders7 for $624,870,


     Total Withheld:                          -300,000
     Amount Already Paid by Battelle:      -12,837,090
     Payment Owed:                         $   387,315
(J.A. 1139.) Thus, there is an approximate $734,139.58 difference
between what Battelle calculated it had paid and what Barclay White
calculated Battelle had paid.         Additionally, there is an
approximate $97,960.28 difference between the contract amount
calculated by the two parties.
     7
      The first change order refers to Barclay White’s request for
a payment of $320,787 for six PCOs, which became six CORs.
     The second change order refers to Barclay White’s request for
a payment of $304,083 for 48 PCOs, which translated into 46 CORs.
Battelle alleges it paid in full with regard to this amount, with
the exception of one voided and two disputed PCOs. Battelle paid

                                  5
a breach of contract claim for $125,595 (the balance between the

GMP and the amount paid), an unjust enrichment claim, a quantum

meruit claim, and a claim for the violation of the Maryland Prompt

Payment Act.    Battelle answered, filed a counterclaim, and removed

to federal court.8

     Following discovery, both parties moved for summary judgment.

The district court rejected Barclay White’s motion and granted

Battelle’s motion.       Barclay White moved for reconsideration of its

breach of contract claim, which the court denied.                 Battelle and

Barclay White then stipulated to dismiss Battelle’s counterclaim

without prejudice.       Consequently, the district court dismissed the

counterclaim.     On the same day, Barclay appealed to this Court,

challenging    the   district    court’s   order   and   grant     of   summary

judgment,   but   only    with   respect   to   Count    I   of   the   Amended

Complaint, the breach of contract claim.                Thus, the grant of




$291,011.
     Additionally, in its Amended Complaint, Barclay White argued
that it was entitled to payment of a third change order in the
amount of $222,006 for what appears to be 37 PCOs converted to 34
CORs.
     8
      On May 15, 2005, Barclay White moved to amend its complaint,
filing an Amended Complaint with its motion. Battelle argues in
its brief that the amendment was untimely, as it was filed outside
of the time allotted for amending the complaint by the district
court’s scheduling order. Battelle opposed the amendment. The
district court granted the motion, and the Amended Complaint was
filed. However, because the district court ultimately accepted the
Amended Complaint, amending the complaint is not an issue in this
appeal.

                                     6
summary judgment on the breach of contract allegation is Barclay

White’s sole claim before us on appeal.9



                               II.

     We review a grant of summary judgment de novo, “employing the

same legal standards applied by the district court.”    Elliott v.

Sara Lee Corp., 190 F.3d 601, 605 (4th Cir. 1999) (citing Brogan v.

Holland, 105 F.3d 158, 161 (4th Cir. 1997)).      In evaluating a

motion for summary judgment, this Court reviews the evidence in the

light most favorable to the nonmoving party, in this case Barclay

White.    See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986).

     Summary judgment is proper when there is no genuine issue of

material fact to warrant a trial.    FED. R. CIV. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).   Battelle argues that

it is entitled to summary judgment because it has already paid

Barclay White all the amounts owed under the contract.     Barclay

White counters that the district court erred by limiting its breach

of contract claim and that it raised genuine issues of material

fact.    We agree.




     9
      The breach of contract claim includes damages Barclay White
alleges as resulting from delay.

                                7
                               A. Scope of Claim

     The district court began its analysis by limiting the scope of

Barclay White’s breach of contract claim to three change orders.10

The court then found that Battelle “correctly notes that this

disputed evidence clearly shows that [Barclay White] has been paid

the appropriate amounts owed under Change Orders one, two, and

three,”    and   that   Barclay    White   “has    not   presented   evidence

indicated [sic] that these amounts were not included as part of the

$13,224,405 paid by Battelle to Barclay.”                (J.A. 2388.)      As a

result, the court concluded that Barclay White did not present

sufficient probative evidence to overcome summary judgment on its

breach of contract claim.

     Barclay White argues that the district court incorrectly

narrowed   the   breach   of    contract   claim   to    an   allegation    that

Battelle did not pay for the extra work indicated on the three

changes orders.    Rather Barclay White maintains that it pled a far

more general breach of contract claim, growing out of Battelle’s

failure to pay all amounts due under the contract.              We agree.

     Notice pleading rests on the principle that the defendant

should have “fair notice of what [a] plaintiff’s claim is and the



     10
       The district court stated that “[a]lthough the precise
contours of Plaintiff’s breach of contract claim are virtually
impossible to identify, this Court treats Count I as a claim based
on Battelle’s alleged failure to pay $995,164 in connection with
the CORs listed in Change Orders one, two, and three.”       (J.A.
2385.)

                                       8
grounds upon which it rests.”           Conley v. Gibson, 355 U.S. 41, 47

(1957).    Rule 8 of the Federal Rules of Civil Procedure provides

that “[p]leadings must be construed so as to do justice.”               FED. R.

CIV. P. 8(d).    Rule 8 “requires only ‘a short and plain statement

of the claim showing that the pleader is entitled to relief,’ in

order to ‘give the defendant fair notice of what the . . . claim is

and the grounds upon which it rests.’”             Bell Atl. Corp. Twombly,

127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S.

41, 47 (1957) (omission in original)).

       The breach of contract claim in the Amended Complaint stated

that   “[d]uring   the   course    of    the   Project,    Barclay   White    was

directed by Battelle and/or its representatives to perform Extra

Work.”    (J.A. 430, ¶ 55.)        However, while Barclay discussed the

“Extra Work” it performed in its breach of contract claim, it also

included claims that “[p]ursuant to its Contract with Barclay

White, Battelle agreed to pay Barclay White for the work, services

and materials Barclay White supplied at the Project,” that “Barclay

White performed all Contract work and Extra Work in a timely,

professional and workmanlike manner,” and that “[de]spite Barclay

White [sic] fulfulling all of its obligations under the Contract

and performing all Extra Work as requested by Bartelle in a timely,

professional and workmanlike manner, Battelle has failed and/or

refused    to   remit    payment    to       Barclay   White   in    excess    of

1,078,465.00.”     (J.A. 431, ¶¶ 57, 59, 60.)             Thus, under a broad


                                         9
pleading rule, Battelle was on notice that the breach of contract

claim implicated both “all Contract work and Extra Work.”                 The

district court was thereby incorrect in restricting Barclay White’s

claim to just three change orders.         We hold that Barclay White pled

a   breach   of   contract   claim,   encompassing   all   work   under   the

contract and all extra work.      We now turn to whether Barclay White

presented genuine issues of material fact sufficient to defeat

Battelle’s summary judgment motion.

                   B. Genuine Issues of Material Fact

      In its Reply Brief, Barclay White clearly claims damages for

money withheld for incomplete work and for the failure to pay

disputed change orders, as well as general and additional costs.

Battelle argues that despite Barclay White’s knowledge of the

$300,000 withheld, the $204,000 in disputed change orders, and the

$384,000 in cost overruns, it failed to include those amounts in

its eighty-nine paragraph Amended Complaint and cannot assert them

before this Court.

                             1. Money Withheld

      Battelle created a punch list of deficient work, sought an

estimate for the completion of that work, and subtracted that

amount from its payment to Barclay White.11        Barclay White contends

that Battelle breached the contract by withholding $300,000 for



      11
      Barclay White at argument asserted only that it performed
most, and not all, of the punch work.

                                      10
incomplete work.     Battelle responds that Barclay White did not

sufficiently plead this aspect of its breach of contract claim, and

thus, this Court cannot hear it.        We disagree.    Barclay White’s

claim for all costs under the contract includes the $300,000

Battelle withheld.    Moreover, the amount withheld constitutes a

genuine issue of material fact appropriate for a factfinder.

     With its May 10, 2004 payment closeout letter and check for

$387,315, Battelle included a May 4, 2004, letter from Himes

Associates, Ltd. (“Himes”), the owner representation firm employed

by Battelle.   In a section titled “Incomplete/Deficient Work,” the

Himes letter explained:

     BWS [Barclay White Skanska] has never completed the
     interior or exterior punch lists that were issued during
     the course of the project. Battelle had the design team
     consolidate the punch lists into one document that
     addressed only the significant issues with the operation
     of the building.

     This punch list was priced by another contracting firm
     who determined that repairs to the building would cost
     $300,000.    This figure was used to establish the
     uncorrected/incomplete analysis of the project and
     contract. Certainly BWS has the option to complete this
     list but since it was issued in December 2003, no attempt
     to correct the work has been undertaken.

(J.A. 1131.)   Thus, based on Barclay White’s failure to complete

the punch list and an outside estimate of the cost of the work,

Battelle withheld $300,000 for incomplete work.

     Battelle argues that in failing to include it in the Amended

Complaint, Barclay White did not properly plead this issue, thereby

barring   Barclay   White   from   recovering   the    withheld   amount.

                                   11
Battelle is partially right:        nowhere in the Amended Complaint’s

factual background or section on the breach of contract does

Barclay   White   challenge   any   funds    withheld   for   a   failure   to

complete work.     Yet before this Court, Barclay White claims that

the $300,000 represents a failure to honor the contract and can be

inferred to be included in parts of the Amended Complaint dealing

with the breach.    We agree.

     As we held in the previous section, Barclay White alleged a

claim for all costs owed under the contract. According to Maryland

law, the existence of a binding contract requires “an offer by one

party and an unconditional acceptance of that precise offer by the

other.”   Lemlich v. Bd. of Trs., 385 A.2d 1185, 1189 (Md. 1978).

In Taylor v. NationsBank, N.A., 776 A.2d 645, 651 (Md. 2001)

(citations omitted), the Maryland Court of Appeals held that

     To prevail in an action for breach of contract, a
     plaintiff must prove that the defendant owed the
     plaintiff a contractual obligation and that the defendant
     breached that obligation. It is not necessary that the
     plaintiff prove damages resulting from the breach, for it
     is well settled that where a breach of contract occurs,
     one may recover nominal damages even though he has failed
     to prove actual damages.

Intentionally withholding any costs that would otherwise be owed

constitutes a potential breach.             Thus, because Barclay White

included a general claim for all costs under the contract, it was

not necessary for Barclay White to specifically plead the $300,000

Battelle withheld to recover damages for that amount.



                                    12
     Although employees of Barclay White indicated that the company

was aware of certain unfinished work (see J.A. 1231-34), for

Battelle to withhold $300,000 when retainage had already been

calculated, providing only a quote from “another contract firm” as

support,12 raises a genuine issue of material fact.        In moving for

summary judgment, Battelle attached several documents to buttress

its position, including depositions, letters from the outside

contractor, an appraisal report of the incomplete work, and Himes’

accounting documents.     While this evidence supports Battelle’s

argument that the alleged unfinished work would cost $300,000 to

complete, it may not relieve Battelle of its contractual obligation

to pay Barclay White.

     That said, a claim for $300,000 is somewhat disingenuous, as

Barclay White in its own calculations allowed for a $170,230.26

deduction   in   retainage,   as   calculated   in   its   final   payment

application.     See supra note 5.       Thus, the claim may be more

rightfully for $129,769.74, the difference between Barclay White’s

own calculation of retainage and the amount actually withheld by

Battelle.   Though we note this discrepancy, we leave this question

to the trier of fact.




     12
      Peter Coyle of Barclay White testified at his deposition that
he did not receive a detailed breakdown of the outside estimate
until the parties attempted settlement negotiations. (J.A. 1240.)

                                    13
                              2. Change Orders

      Barclay White presents two issues related to change orders:

Battelle’s failure to execute the approved change orders and its

failure to pay the disputed change orders. We address these issues

in turn.

      In its Amended Complaint, Barclay White alleges that

      Pursuant to the Contract, Barclay White is entitled to
      written change orders and a corresponding increase in the
      Contract price for work it performed at the direction and
      request of Battelle and/or Himes that was in addition to,
      beyond or outside the scope of the original terms of the
      Contract (“Extra Work”).

(J.A. 421, ¶ 6.) In moving for summary judgment, Battelle attached

several pages of deposition testimony to its motion for summary

judgment in which Barclay White’s expert declares that he could not

contest Battelle’s expert’s testimony that the disputed change

orders were paid.          With its motion opposing summary judgment,

Barclay White filed several exhibits, including a letter presenting

the   GMP,   copies   of    potential    change   orders,   affidavits,   and

deposition testimony.       However, Barclay White included no evidence

directly contradicting Battelle’s evidence that the change orders

had, in fact, already been paid.13            Moreover, at oral argument


      13
      With respect to change orders one and two, it is undisputed
by the evidence presented in the exhibits that those amounts were
paid. There is, however, some confusion with regard to the third
change order. Barclay White originally presented the third change
order as comprised of 37 PCOs, but later one of Barclay White’s
witnesses indicated that the third change order consisted of 63
CORs. Battelle’s witness testified that the original 37 PCOs were
paid.   Although Barclay White raised this issue in opposing

                                        14
Barclay White clarified that the issue was not whether the change

orders were paid, but rather whether they were executed, the result

of which under the contract would have been an increase of the GMP.

Both Barclay White and Battelle calculated that the total contract

cost exceeded the $13,350,000 GMP.14             If the total contract cost

exceeded the GMP, the payment but failure to execute the change

orders would adversely affect Barclay White because the payments

would        go   toward   the   GMP   without   the   GMP’s   being   increased

accordingly, thereby cutting into the amount Barclay White could

receive for costs and other expenses.            Thus, regardless of whether

the change orders were paid, Barclay White may have a claim for the

difference between the actual contract value, as determined by a

jury, and the GMP because the paid change orders were never

executed.15

        In addition to its claims related to the failure to execute

the approved, paid change orders, Barclay White also argues that it



Battelle’s motion for summary judgment, this inconsistency is not
an issue at this point in the proceedings, as Barclay White
concedes that the issue surrounding the approved change orders is
not payment but execution.
        14
       Before the $300,000 deduction, Battelle valued the contract
at $13,524,405. Barclay White valued it at $13,426,444.72. (J.A.
1139.)
        15
      However, according to Barclay White’s calculations, if
Battelle is entitled to the $170,230.26 of retainage, the total
owed to Barclay White is $13,256,214.46, an amount under the GMP,
potentially making the failure to execute the change orders moot,
if Battelle is allowed to keep the retainage.

                                          15
is entitled to $204,454 in disputed change orders.            The disputed

change   orders     arose   from    eleven      potential    change   order

notifications     that   Himes   found   were    not   billable   under   the

contract. (J.A. 1137.) Battelle again counters that the issue was

not properly pled, as Barclay White specifically alleges damages

for three change orders in its Amended Complaint, but is silent

with respect to the disputed change orders.            However, unlike the

$300,000, which Battelle deducted from approved costs and fees,

liberal notice pleading cannot save Barclay White’s claim for the

disputed change orders.

     As we previously stated, notice pleading is designed to

provide defendants with fair notice of the plaintiffs’ claims and

the grounds upon which those claims rest.          Conley, 355 U.S. at 47.

Thus, Barclay White’s complaint cannot be construed so liberally so

as to deprive Battelle of notice.               Additionally, despite the

liberal pleading rules outlined by the Supreme Court, plaintiffs

may not raise new claims without amending their complaints after

discovery has begun.     In Gilmour v. Gates, McDonald & Co., 382 F.3d

1312, 1315 (11th Cir. 2004) (citing Shanahan v. City of Chicago, 82

F.3d 776, 781 (7th Cir. 1996)), the Eleventh Circuit held that

     Efficiency and judicial economy require that the liberal
     pleading standards under Swierkiewicz and Rule 8(a) are
     inapplicable after discovery has commenced.       At the
     summary judgment stage, the proper procedure for
     plaintiffs to assert a new claim is to amend the
     complaint in accordance with Fed. R. Civ. P. 15(a). A
     plaintiff may not amend her complaint through argument in
     a brief opposing summary judgment.

                                    16
Other circuits have taken similar positions.    See Tucker v. Union

of Needletrades, Indus., & Textile Employees, 407 F.3d 784, 788

(6th Cir. 2005); Shanahan, 82 F.3d at 781 (citing Car Carriers,

Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)) (“A

plaintiff may not amend his complaint through arguments in his

brief in opposition to a motion for summary judgment.”); Fisher v.

Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990) (“As the

district court correctly noted, this claim was not raised in

Fisher’s second amended complaint but, rather, was raised in his

response to the defendants’ motions for summary judgment and, as

such, was not properly before the court.”).16    Barclay White is,

therefore, unable to raise new claims after discovery has commenced

without further amending its complaint.

     In a preceding section, we held that Barclay White’s claim for

all costs owed under the contract encompassed a claim for the money

withheld by Battelle due to unfinished work.    With regard to that

issue, Battelle ignored the terms of the contract and the retainage

already built into the agreement, conducted an outside appraisal,

and deducted monies from the contract amount that Barclay White

otherwise would have been owed. In contrast, the $204,454 at issue


     16
      Additionally, district courts in this circuit have adopted
Gilmour. See Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp.,
455 F. Supp. 2d 399, 436 (D. Md. 2006); Miller v. Jack, 2007 U.S.
Dist. LEXIS 50685 at *12 (N.D. W.Va. July 12, 2007) (citations
omitted) (“Significantly, a plaintiff may not amend his complaint
through arguments in his brief in opposition to summary
judgment.”).

                                17
here arises from disputed change orders, that is change orders that

for one reason or another were not approved or did not conform (at

least   from    Battelle’s    perspective)    to     the   conditions    of   the

contract.      Put differently, unlike the withheld money, because of

the disputed nature of these change orders, Battelle did not fail

to pay Barclay White money to which it was otherwise clearly

entitled.      Thus, the disputed change orders do not fall within the

scope of the “all Contract work and Extra Work” pled in Barclay

White’s Amended Complaint. In outlining the specific parameters of

its Amended Complaint, Barclay White discusses “Extra Work” in

terms   of   the   approved   change    orders,      and   Battelle   conducted

meticulous discovery with respect to those change orders. However,

Barclay White’s failure to include the disputed change orders in

its Amended Complaint deprived Battelle of the opportunity to have

discovery on this issue.

      Although in its Reply Brief Barclay White tries to reframe the

disputed change orders as additional money unfairly withheld by

Battelle, those orders were not approved. Thus, under the terms of

the   contract,     Barclay   White    was   never    entitled   to     payment.

Consequently, while the broad pleading rules can save the issue of

the money withheld for incomplete work, it cannot similarly save

the disputed change orders.            Because Barclay White’s Amended

Complaint did not put Battelle on sufficient notice that, in

addition to the three change orders enumerated in the complaint,


                                       18
the disputed change orders were also at issue, we hold that it

failed to plead this issue adequately and affirm the district

court’s grant of summary judgment on this issue.

                             3. General Costs

     Lastly, Barclay White argues that it is entitled to $384,383

in General Costs beyond Battelle’s calculations.                Battelle argues

that the costs were capped at $834,854.               As with both preceding

issues, Battelle argues that Barclay White failed to include

general costs in its Amended Complaint and, therefore, cannot

recover.    Again, we disagree.

     A May 11, 2001, bid form clearly states that the general

conditions were not to exceed $834,854, thereby expressly capping

what Barclay White could recover for costs, but containing no GMP.

(J.A.   535.)    The     governing    contract,       however,       includes   the

$13,350,000 GMP, but does not include a cap on costs.                    Like the

$300,000 withheld, the General Costs issue falls within the broad

umbrella of Barclay White’s claim for “all Contract work.” Whether

the cap articulated in the bid form, but not included on the face

of   the   contract,    should   apply     is    a    matter    of    contractual

interpretation suited for trial.

                          C. Notice Requirement

     In    granting    Battelle’s    motion     for   summary    judgment,      the

district court also found that Barclay White failed to comply with

the notice provision of the contract. Citing the Maryland Court of


                                      19
Special Appeals case J. Ronald Dashiell & Sons, Inc. v. County

Commissioners of Caroline County, No. 677 (Md. Ct. Spec. App. Feb.

22,   1999),    affirmed   in   part,      reversed   in     part   by   County

Commissioners of Caroline County v. J. Ronald Dashiell & Sons,

Inc., 747 A.2d 600 (Md. 2000), the district court found that

Barclay White’s written statement that it was considering filing a

claim for delay inadequate notice under the contract. In Dashiell,

the court granted summary judgment on a liquidated damages claim

because   the   contractor   failed     to   comply   with    the   contract’s

notification requirement.       Id. at *9.    In its brief to this court,

Battelle asserts that in addition to any “delay damages,” Barclay

White also waived, inter alia, claims for the $300,000 withheld,

the disputed change orders, and the general conditions costs under

Dashiell.      (Appellee’s Br. 37.)        We now address the contract’s

notice requirement.

      Section 4.3 of the Contract governs notice.               That section

reads:

      4.3 CLAIMS AND DISPUTES

      4.3.1 Definition.
      A Claim is a demand or assertion by one of the parties
      seeking,   as  a   matter   of  right,   adjustment   or
      interpretation of Contract terms, payment of money,
      extension of time or other relief with respect to the
      terms of the Contract. The term “Claim” also includes
      other disputes between the Owner and the Contractor
      arising out of or related to the Contract. Claims must
      be initiated by written notice. The responsibility to
      substantiate Claims shall rest with the party making the
      Claim.


                                      20
     4.3.2 Time Limit on Claims.
     Claims by either party must be initiated within 21 days
     after the occurrence of the event giving rise to such
     Claim or within 21 days after the claimant first
     recognizes the condition giving rise to the Claim,
     whichever is later. Claims must be initiated by written
     notice to the Architect and the other party.

(J.A. 491, §§ 4.3.1, 4.3.2.)   As in the present case, in Dashiell,

the contract required written notice of the claim within 21 days.

However, the contractor submitted a letter on December 16, 1996,

indicating the intent to recover unspecified delay damages for

events occurring after June 20, 1996.    Dashiell, No. 677 at *9.

The Dashiell court held that the notice was untimely.17        Id.

Conversely, Barclay White provided Battelle with timely written

notice.

     In early 2003, Barclay White sent its last payment application

to Battelle, indicating Barclay White’s position that Battelle owed

$13,426,444.72 for the entirety of the contract.     Barclay White

received Battelle’s check and final payment letter on May 21, 2004.

(J.A. 582.) Barclay White responded on June 4, 2004, fourteen days

later, rejecting the check and indicating Barclay White was of the



     17
      The Dashiell court also noted in a footnote that “[i]n
addition to being untimely, the December 16, 1996, ‘Notice of
Claim’ did not provide ‘an estimate of cost and of probable effect
of delay on progress of the work’ pursuant to the plain language of
section 4.3.8.1.” Dashiell, No. 677 at *9, n. 2. Section 4.3.7.1
of the Barclay White’s contract with Battelle contains a similar
provision. However, that section deals only with delay damages,
whereas the issues currently before this Court are money withheld
for defective work, the disputed PCOs, and the general conditions
costs. Section 4.3.7.1 does not, therefore, apply.

                                 21
position that Battelle owed more money under the contract.           (J.A.

584-87.)     As the final payment application and subsequent letter

were sufficient to fulfill the written notice requirement, the

district court was incorrect in finding Barclay White had waived

its claim.



                                   IV.

     The district court erred in limiting Barclay White’s breach of

contract claim.     Thus, we hold that Barclay White pled a breach of

contract claim for all costs owed under the contract.             With the

scope of the claim no longer so severely limited, we hold that

Barclay    White   presented   genuine   issues   of   material   fact   in

reference to the $300,000 withheld for alleged incomplete work, the

failure to execute the approved change orders, and general costs.

We, therefore, reverse the district court’s grant of summary

judgment on these issues. However, because Barclay White failed to

plead the disputed change orders adequately, we affirm the district

court’s grant of summary judgment on this issue.         Thus, we remand

this case for a trial on the merits pursuant to this opinion.



                                                     AFFIRMED IN PART;
                                         REVERSED AND REMANDED IN PART




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