UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA FOR THE
USE OF WOLF CONTRACTORS, INC.;
WOLF CONTRACTORS, INC.,
Plaintiff-Appellee,

v.

RITCHIE-CURBOW CONSTRUCTION
                                                         No. 95-1349
COMPANY, INCORPORATED,
Defendant-Appellant,

and

FIDELITY AND DEPOSIT COMPANY OF
MARYLAND,
Defendant.

UNITED STATES OF AMERICA FOR THE
USE OF WOLF CONTRACTORS, INC.;
WOLF CONTRACTORS, INC.,
Plaintiffs-Appellants,

v.
                                                         No. 95-1669
RITCHIE-CURBOW CONSTRUCTION
COMPANY, INCORPORATED;
FIDELITY AND DEPOSIT COMPANY OF
MARYLAND,
Defendants-Appellees.

Appeals from the United States District Court
for the Eastern District of Virginia, at Newport News.
William T. Prince, Magistrate Judge.
(CA-93-143-4)

Argued: January 29, 1996
Decided: March 29, 1996

Before WIDENER and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Terrence Keech Martin, OVERMAN, COWARDIN &
MARTIN, P.L.C., Newport News, Virginia, for Appellant. Kenneth
Leon Roberts, ROBERTS & ROBERTS, P.C., Newport News, Vir-
ginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

The Army Corps of Engineers awarded Appellant/Cross-Appellee
Ritchie-Curbow Construction Co., Inc. the general contract for con-
struction of a hazardous materials storage warehouse in Richmond,
Virginia. Ritchie-Curbow subcontracted part of the project to
Appellee/Cross-Appellant Wolf Contractors, Inc. At the end of the
project, Wolf brought a Miller Act claim against Ritchie-Curbow and
its surety, Fidelity and Deposit Company of Maryland, seeking full
payment of the amount Wolf claimed was due on its account. Ritchie-
Curbow refused payment, claiming that any amount it owed Wolf
should be cancelled out by extra expenses it had incurred on Wolf's
behalf.

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The case was tried by consent before a Magistrate Judge for the
Eastern District of Virginia. Wolf primarily argued that it was due
additional payments for extra-contractual work it performed. For
example, Wolf claimed that the original contract did not require it to
perform two of the jobs it completed, namely, placing protective bol-
lards around fire hydrants and regrading a large section of the site.
Wolf further sought to recover various expenses it claimed were
attributable to Ritchie-Curbow's mismanagement of the project.

For its part, Ritchie-Curbow argued that Wolf's claims should be
set off against expenses it had incurred because of Wolf's poor per-
formance or, in some cases, nonperformance. As evidence of how
Wolf's balance due should be adjusted, Ritchie-Curbow presented
twelve "change orders" that chronicled individual projects performed
during the construction of the warehouse. According to Ritchie-
Curbow's calculations, the sum of these change orders--most of
which back-charged Wolf for expenses Ritchie-Curbow incurred in
having these projects completed--completely offset Wolf's claims for
additional compensation.

In a comprehensive Memorandum Opinion, the Magistrate Judge
addressed the parties' arguments regarding how Wolf's balance due
should be adjusted, and denied most, but not all, of Wolf's claims for
additional payment. Similarly, the Magistrate Judge reduced Wolf's
new balance due by some, but not all, of the charges listed in Ritchie-
Curbow's change orders.1 At the end of the day, the Magistrate Judge
concluded that Wolf was due a balance of $8,879.65.

Ritchie-Curbow and Fidelity now appeal,2 claiming that the Magis-
_________________________________________________________________
1 Some of these orders--numbers two, three, and four--acknowledged
that Wolf should be paid for doing work not originally contemplated in
its subcontract; the Magistrate Judge ultimately increased Wolf's balance
due by the amount of these charges. Other change orders--numbers nine
through twelve--back-charged Wolf for work that all agree was included
in the subcontract but which Wolf left undone. The Magistrate Judge
accordingly reduced Wolf's balance due by the amounts specified in this
second set of change orders. Neither party appeals the Magistrate Judge's
treatment of change orders two through four or nine through twelve.
2 The parties dispute whether the notice of appeal properly named
Fidelity as a party to this appeal. In view of our disposition of the appeal,
we need not address that question.

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trate Judge erred in refusing to reduce Wolf's balance due by the full
sum of Ritchie-Curbow's offsetting change-order charges. Wolf
cross-appeals the Magistrate Judge's dismissal of two of its claims
based on noncontractual work, specifically its claims regarding the
placement of bollards around fire hydrants and its regrading work.

We have carefully considered the briefs and oral arguments of the
parties and those portions of the record pertinent to their various argu-
ments. Having done so, we find no reversible error in the decision of
the Magistrate Judge and accordingly affirm on its reasoning.

AFFIRMED

WIDENER, Circuit Judge, concurring and dissenting:

I concur in all of the majority opinion except that part of it affirm-
ing the district court's treatment of change orders 1 and 5-8 inclusive.
As to those change orders, I respectfully dissent.

The district court declined to give Ritchie-Curbow any credit for
those change orders because not raised as an affirmative defense. This
action, I think, was error. I would have credited those change orders
in the amount of $4,160.00, which would have reduced the judgment
due Wolf by that amount.

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