J.E. Dunn Construction Company v. S.R.P. Development Limited Partnership et al, No. 8:2011cv01948 - Document 75 (D. Md. 2014)

Court Description: MEMORANDUM OPINION (c/m to SRP Development Limited Partnership, The Smoot Corporation, and Roebuck Investments, Inc. 8/5/14 sat). Signed by Chief Judge Deborah K. Chasanow on 8/5/14. (sat, Chambers)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : J.E. DUNN CONSTRUCTION CO. : v. : Civil Action No. DKC 11-1948 : S.R.P. DEVELOPMENT LIMITED PARTNERSHIP, et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this breach of contract case are (1) the motion of Plaintiff/Counter- Defendant J.E. Dunn Construction Company ( J.E. Dunn ) to strike the first amended answer, counterclaim, Defendants/Counter-Plaintiffs Partnership, The Smoot S.R.P. Corporation, and cross-claim Development and Robuck of Limited Investment, Inc. s (collectively SRP ) or, in the alternative, to dismiss counts I and II of the first amended counterclaim. (ECF No. 67), and (2) a motion to renew the motion to dismiss previously filed by briefed, Plaintiff. and necessary. the (ECF court No. now Local Rule 105.6. 60). rules, The no issues hearing have being been deemed For the following reasons, the motion to renew will be denied as moot. The motion to strike or, in the alternative, to dismiss will be granted in part and denied in part. Defendants filing of an amended pleading will be accepted as the operative pleading, but JE Dunn s motion to dismiss the amended counterclaim will be granted.1 I. Background This case has three groups of parties: J.E. Dunn, SRP, and Metropolitan Baptist Church ( Metropolitan ) and involves the efforts to build a new megachurch for Metropolitan in Upper Marlboro, Maryland ( Project ). On September 29, 2005, Metropolitan retained SRP to serve as its project manager for the Project through a Development Management Agreement ( Development Contract ), and the Agreement Between Owner and Design Builder ( Design Build Contract ). The Development Contract provides that SRP will generally act as Metropolitan s trusted advisor by shepherding the Project through to completion, such as handling zoning, legal, financing issues, along with evaluating the drawings, cost construction schedule of the general contractor.2 estimates, and (ECF No. 33-1 1 On April 1, 2014, the law firm LeClairRyan filed a motion to withdraw as attorney for Defendants. (ECF No. 72). LeClairRyan represents that all parties have been consulted and do not oppose its withdrawal. The motion will be granted and Defendants will be advised accordingly. 2 Although as a general rule extrinsic evidence should not be considered at the 12(b)(6) stage, the court may consider such evidence where the plaintiff has notice of it, does not dispute its authenticity, and relies on it in framing the complaint. Am. Chiropractic Ass n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2002); see also Douglass v. NTI-TSS, Inc., 632 F.Supp.2d 486, 490 n.1 (D.Md. 2009). CounterPlaintiff S.R.P. attached to its counterclaim the Development 2 § 2.2). In exchange for receiving these services, Metropolitan agreed to pay SRP five percent (5%) of the total construction budget for the Project plus expenses. (Id. §§ 3.1, 3.4). The contract states that each party reserves the right to cancel the agreement upon written agreement was terminated relieved obligated of to notice all SRP for further pay to the other convenience, obligations, the costs and party. the but fees If the parties are Metropolitan which is have been authorized and incurred by SRP at the time of termination. (Id. § 6.1). SRP subsequently entered into negotiations with J.E. Dunn for the Project s general contract services. J.E. Dunn evaluated the Project and provided a Guaranteed Maximum Price ( GMP ) for the Project as $31,098,000. A GMP is a method of cost control whereby the contractor is compensated for actual costs incurred not to exceed the GMP. SRP acknowledged procurement. SRP retained the GMP and (ECF No. 33-4). J.E. Dunn to On September 28, 2005, authorized J.E. Dunn to begin Based on the GMP representation, serve as the Project s general contractor and entered into an agreement on November 29, 2005. Construction started, but problems ensued. On or about July 29, 2008, Metropolitan terminated the Development Contract Contract, the Design-Build Contract, and the agreement between J.E. Dunn and SRP. These documents will be considered as part of the motion to dismiss. 3 and the Design-Build Contract with SRP on August 6, 2008. In turn, SRP terminated the Subcontract with J.E. Dunn on August 18, 2008, pursuant to Section 14.1 of the contract, purportedly without cause. J.E. Dunn s Amended Complaint asserts claims against SRP for breach of contract damages in the amount of $3,591,062, and for quantum meruit and unjust enrichment damages in the amount of $7,300,000. Metropolitan J.E. for Dunn also promissory asserts estoppel, quantum meriut, and unjust enrichment. asserts, terminated upon the information contracts misrepresentations made and with by SRP to scope and cost of the Project. breach as against of contract, (ECF No. 31). J.E. Dunn belief, SRP claims a that Metropolitan result Metropolitan of negligent regarding the J.E. Dunn s Amended Complaint also recites that Metropolitan later requested it to complete the Project agreement and under those which two J.E. parties Dunn was entered to into supply a direct all labor, services and materials necessary to complete the Project, for which it is owed $3,629,891. On February 5, 2009, J.E. Dunn commenced a mechanic s lien action against the Project. In its amended counterclaim against J.E. Dunn, SRP alleges that work began in December 2005. Dunn s billing far exceeded the From the very beginning, J.E. amount contemplated by the parties and by spring 2008, Project costs had already approached 4 the limits of the GMP. SRP alleges that J.E. Dunn failed to investigate subcontractor costs and should have known that it could not complete work on the Project within the GMP or any amount Metropolitan could reasonably be expected to pay. According to SRP, the parties initially attempted to cooperate to remedy the cost situation but, unbeknownst to SRP, J.E. Dunn was independently negotiating with Metropolitan to oust SRP and enter into a direct agreement with Metropolitan. (ECF No. 64 ¶¶ 13 and 14). On July 29, 2008, Metropolitan sent a letter to SRP terminating - effective August 6, 2008 - both the Development Contract and the Design Build Contract. direct and proximate result of (ECF No. 34-2).3 Metropolitan s As a termination of their contracts, SRP, without waiving any of its rights, was forced to terminate its contract with J.E. Dunn. SRP s termination letter, dated August 18, 2008, stated: As you are aware, [Metropolitan] has terminated each of its contracts with SRP, . . . and SRP has proposed that J.E. Dunn consent to the assignment of . . . the Agreement from SRP to [Metropolitan]. At this juncture, J.E. Dunn has not consented to the proposed assignment. 3 J.E. Dunn attached these letters to its original motion to dismiss. They are referenced in the complaint and SRP, in its opposition papers, does not challenge their authenticity. Thus, the court may consider them in resolving the pending motion to dismiss. 5 Therefore, in the interests of moving the Project forward, and without waiving any rights thereunder, pursuant to § 14.1 of the Agreement, SRP hereby provides, to J.E. Dunn, Notice of Termination of the Agreement effective as of August 6, 2008, based upon [Metropolitan s] termination of the agreements with SRP. SRP hereby requests J.E. Dunn coordinate a meeting among SRP, J.E. Dunn, and [Metropolitan] for the purpose of facilitating an efficient transition of the Project, and addressing any and all remaining issues. (ECF No. 34-3). then entered According to SRP, J.E. Dunn and Metropolitan into their own agreement whereby J.E. Dunn continued to work as general contractor on the Project. (ECF No. 64 ¶¶ 16 and 17). SRP filed its original counterclaim on October 26, 2012 (ECF No. 33), and its amended counterclaim on December 12, 2013 (ECF No. 64). J.E. Dunn filed a motion to strike this amended pleading or, in the alternative, to dismiss the counterclaim on December 30, 2013. (ECF No. 67). SRP opposed the motion on January 16, 2014 (ECF No. 68), and J.E. Dunn replied on February 3, 2014 (ECF No. 69). II. Analysis A. Motion to Strike J.E. Dunn argues that (1) the amendments are untimely, (2) CounterPlantiffs failed to seek consent or leave of court, and (3) the prejudice. lack of timeliness should not be excused due to Pursuant to Fed.R.Civ.P. 15(a)(2), the court should 6 freely give requires. 4 leave to amend pleadings when justice so Therefore, the court should deny leave to amend only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile. Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (citation and internal quotation marks omitted); Keller v. Prince George s Cnty., 923 F.2d 30, 33 (4th Cir. 1991) (upholding district court order denying plaintiff leave to amend his complaint to include claims that were barred by the applicable statute of limitations because such amendment would be futile). An amendment is futile when the proposed amendment is clearly insufficient or frivolous on its face, or if the amended claim would still fail to survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). El Amin v. Blom, No. CCB 11 3424, 2012 WL 2604213, at *11 (D.Md. July 5, 2012) (internal citations and quotation marks omitted). The scheduling order in this case had been stayed to allow the parties to attempt mediation. Mediation failed, and the court approved the parties joint status report on October 17, 4 Rule 15(a)(1) permits a party to amend its pleading once as a matter of course within 21 days after serving it; or 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. SRP filed its original counterclaim on October 26, 2012 and J.E. Dunn filed its motion to dismiss on November 16, 2012. Because SRP filed its amended counterclaim on December 16, 2013, SRP is not entitled to amend as of right. 7 2013. (ECF No. 59). motions for That status report set the deadline for joinder of additional pleadings as December 12, 2013. argument is that the amendment parties and amendment (ECF No. 58). would be of J.E. Dunn s prejudicial as SRP waited more than three months to file its amendment, without seeking the consent of J.E. Dunn or the court. had a pending motion to dismiss which SRP J.E. Dunn also acknowledged, as evidenced by SRP s filing of an opposition on November 1, 2013. (ECF No. 61). Additionally, J.E. Dunn argues that it has been prejudiced because it has already provided discovery, including discovery aimed at certain allegations that have now been removed or modified by the Amended Counterclaim. J.E. Dunn s arguments will be rejected. While SRP failed to comply with Local Rule 103.6(d) requiring a party to attempt to obtain consent of opposing counsel before filing a motion requesting leave to file an amended pleading, the prejudice alleged by J.E. Dunn is not apparent. There does not appear to be reacted any delay as J.E. Dunn quickly to the amended complaint by renewing its motion to dismiss and addressed the amended counterclaim. Construing SRP s amended counterclaim as a motion for leave to file an amendment, the motion will be granted, the December 12, 2013 amendment will be the operative pleading, and J.E. Dunn s motion to dismiss that pleading for failure to state a claim will be considered. 8 B. Motion to Dismiss The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Charlottesville, 464 F.3d 480, 483 (4th Presley v. City of Cir. 2006). A plaintiff s complaint need only satisfy the standard of Rule 8(a), which requires a short and plain statement of the claim showing that the pleader is entitled to relief. 8(a)(2). Fed.R.Civ.P. Rule 8(a)(2) still requires a showing, rather than a blanket assertion, of entitlement to relief. v. Twombly, 550 U.S. 544, 555 n.3 (2007). Bell Atl. Corp. That showing must consist of more than a formulaic recitation of the elements of a cause of action or naked assertion[s] devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In evaluating the complaint, unsupported legal allegations not need be accepted. Revene Comm rs, 882 F.2d 870, 873 (4th Cir. 1989). v. Charles Cnty. Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. 9 at 678, as are conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). Count I of the amended counterclaim alleges that J.E. Dunn breached its contract in two ways: first, by surreptitiously negotiating with Metropolitan to arrive at an agreement whereby Metropolitan would terminate its agreements with SRP. This negotiation would cause SRP to terminate its agreement with J.E. Dunn, thereby freeing up J.E. Dunn and Metropolitan to contract directly, denying its fee, Second, Metropolitan. SRP resulting SRP claims J.E. in Dunn savings breached to its contract by failing to complete the Project within the GMP. SRP presents its first argument as a breach of contract by J.E. Dunn s conspiracy with benefits of its contracts.5 Metropolitan to deny SRP the SRP points to the fact that all Maryland contracts are subject to the implied covenant of good faith and fair dealing. But [e]ven where Maryland law recognizes an implied covenant of good faith and fair dealing, it is limited to the duty not to prevent the other party from performing the contract. Roberson v. Ginnie Mae REMIC Trust 2010 H01, 973 F.Supp.2d 585, 589 (D.Md. 2013) (citing Parker v. 5 For purposes of this analysis, it is assumed that SRP can bring an affirmative claim for damages despite having terminated the contract without cause. 10 Columbia Bank, 91 Md.App. 346, 366 (1992)). The Court of Appeals for Maryland has explained: [T]he covenant of good faith and fair dealing does not obligate a [party] to take affirmative actions that the [party] is clearly not required to take under [the contract]. Rather, the duty simply prohibits one party to a contract from acting in such a manner as to prevent the other party from performing his obligations under the contract. In short, while the implied duty of good faith and fair dealing recognized in Maryland requires that one party to a contract not frustrate the other party s performance, it is not understood to interpose new obligations about which the contract is silent, even if inclusion of the obligation is thought to be logical and wise. An implied duty is simply recognition of conditions inherent in expressed promises. Blondell v. Littlepage, 413 Md. 96, 114 (2010) (quoting E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P Ship, 213 F.3d 175, 182-84 (4th Cir. 2000)). contract with Here, SRP alleges that J.E. Dunn breached its SRP by surreptitiously negotiating with Metropolitan to enter into a new contract that would and did exclude SRP. (ECF No. 64 ¶ 23). But in neither its amended counterclaim nor its opposition does SRP point to any provision of the Agreement that prohibits J.E. Dunn from engaging in such discussions. This is a prime example of an obligation that may be and logical contracting party. wise, but has not been imposed on the Absent some contractual obligation that J.E. Dunn breached, all that is left is a standalone violation of 11 the duty of good faith. of action. Maryland does not recognize this cause Mount Vernon Props., LLC v. Branch Banking & Trust Co., 170 Md.App. 457, 471-72 (2006). Consequently, SRP has not alleged a cause of action for breach of contract under this theory. SRP s second theory for breach of contract is that J.E. Dunn failed to finish the Project for less than or equal to the GMP and, therefore, breached the [Agreement]. 22). (ECF No. 64 ¶ SRP argues that the GMP given by J.E. Dunn negligently underestimated its costs by about $20 million. According to SRP, the GMP was nearly reached when the Project was only 55% complete, but J.E. Dunn decided that, instead of absorbing any costs above the GMP per the terms of the Agreement, it would conspire with Metropolitan to cut out SRP and use the money Metropolitan would have paid to SRP to put toward the Project s costs. A breach obligation in of the contract first action instance. requires Davis Congregation, 985 F.Supp.2d 701 (D.Md. 2013). v. a contractual Balt. Hebrew As with its first theory, SRP points to no contractual obligation held by J.E. Dunn. The GMP was a representation by J.E. Dunn as to how much the Project would cost. Section 4.2.2 of the Agreement states that J.E. Dunn guarantees that the cost of work will not exceed the GMP. The GMP is designed to transfer risk to J.E. Dunn as 12 all costs in excess of the GMP are to be paid by J.E. Dunn, not SRP or Metropolitan. SRP does not allege that J.E. Dunn refused to perform, or that J.E. Dunn demanded payment for costs in excess of the GMP. The work on the Project was stopped because SRP terminated the contract after Metropolitan terminated its agreements with SRP. SRP does not state a breach of contract on this theory. SRP also alleges, for the first time in its opposition, that J.E. Dunn committed an anticipatory breach of contract. Under Maryland law, [o]rdinarily, in order to constitute anticipatory repudiation, there must be a definite, specific, positive, and unconditional repudiation of the contract by one of the parties to the contract. C.W. Blomquist & Co., Inc. v. Capital Area Realty Investors Corp., 270 Md. 486, 494 (1973). The Court of Appeals of Maryland quoted favorably from Professor Corbin s treatise: It has been thought that a mere expression of inability to perform in the future is not a repudiation of duty and cannot be operative as an anticipatory breach. Of course, the expression of a doubt as to whether the ability to perform in accordance with the contract will exist when the time comes, is not a repudiation. A statement of inability to perform, however, may be so made as to justify the other party in understanding it as a definite repudiation. There may be cases in which expressions of inability by one party or an existing appearance of inability on his part to perform will justify the other party in 13 nonperformance of his part of the contract or in materially changing his position so as to make performance impossible, without at the same time operating as an anticipatory breach, for which an action for damages could be maintained. Id. at 495 (quoting 4 Corbin on Contracts § 974, at 914-16 (1951)). SRP argues that [t]he wide miss of the GMP is what forced J.E. Dunn to attempt to cut SRP out of the deal to free up additional funds. That act demonstrates J.E. Dunn had no intention to complete the project within the agreed price limits and that its breach was inevitable. . . . When it became apparent that J.E. Dunn had underestimated its cost by $20 million, its inability to perform was either inevitable or so much in doubt that it constituted an anticipatory breach. (ECF No. 37, at 14-15). In support, SRP points to comment (b) to Section 323 of the First Restatement of Contracts: It may be supposed that a party unjustifiably manifesting unwillingness or inability continues in the same state of mind or lack of ability when the time for performance arrives. necessarily Dunn s a breach underestimation of of contract. the cost In that case there is According by $20 to million SRP, J.E. made its inability to perform either inevitable or so much in doubt that it constituted an anticipatory breach. This argument fails for several reasons. First, while the lead case from the Maryland Court of Appeals on anticipatory breach C.W. Blomquist quoted 14 favorably from the First Restatement, that consistently held case that positive statement ( there must unconditional or be and others repudiation act. a repudiation from must Maryland take C.W. Blomquist, definite, the specific, of the contract ); 270 have form Md. of at positive, Weiss a 494 and v. Sheet Metal Fabricators, Inc., 206 Md. 195, 204 (1955) ( refusal to perform must be positive and unconditional ). SRP does not allege J.E. Dunn made any such repudiation; instead, it alleges that repudiation can be inferred from the allegedly wildly offbase GMP. and the While J.E. Dunn s wildly off-base cost estimation subsequent situation - could efforts be of all considered a parties positive to remedy act the evincing repudiation, such an expression of doubt by J.E. Dunn as to whether it could perform does not rise to the level necessary to constitute anticipatory breach. See C.W. Blomquist, 270 Md. at 495; String v. Steven Dev. Corp., 269 Md. 569, 579-80 (1973); Harrell (buyers v. Sea Colony, request to be Inc., 35 relieved Md.App. of their 300, 307-08 obligations (1977) and a statement that they do not want to proceed with the purchase is not so definite and unequivocal). Additionally, merely failing to complete the Project within the GMP would not constitute a breach; instead, the contract would oblige J.E. Dunn to cover the cost overruns. A definite statement that J.E. Dunn was not going to come in within the GMP and that it expected SRP or 15 Metropolitan to pay the additional costs would be a definite repudiation; the first statement alone is not sufficient. Cf. Himelfarb v. Am. Express Co., 301 Md. 698, 704 (1984) (buyer s announced refusal to pay for product was an anticipatory breach when payment was imminent); Stefanowicz Corp. v. Harris, 36 Md.App. 136, 147 (1977) (purchasers who state that they hereby cancel their repudiated). J.E. Dunn contract have positively and unconditionally Finally, SRP terminated the Agreement not because had stated it would not perform, Metropolitan canceled its agreements with SRP. but because SRP has not pled sufficiently a claim of anticipatory breach of contract. Count II alleges pre-contractual negligent misrepresentation by J.E. Dunn, namely that J.E. Dunn knew that SRP would rely on J.E. Dunn s estimate that it could fully perform the Project within the GMP and intended for SRP to act on this representation. within the GMP, Instead, J.E. Dunn failed to perform underestimating approximately $20 million. its cost of performance by SRP alleges it was damaged by this negligent misrepresentation. Under Maryland law, to assert a claim of misrepresentation, a plaintiff must show that: (1) the defendant, owing a duty of care to the plaintiff, negligently asserts a false statement; (2) the defendant intends that his statement will be acted upon by the plaintiff; (3) the defendant has knowledge 16 negligent that the plaintiff will probably rely on the statement, which, if erroneous, will cause loss or injury; (4) the plaintiff, justifiably, takes action in reliance on the statement; and (5) the plaintiff suffers damage proximately caused by the defendant s negligence. Martens Chevrolet, Inc. v. Seney, 292 Md. 328, 337 (1982). SRP alleges that: J.E. Dunn knew that SRP would rely on its cost estimate to build the Project; J.E. Dunn intended that SRP act on its representation; because J.E. Dunn failed to investigate subcontractor costs, J.E. Dunn should have known that its GMP was erroneous and would cause injury to SRP; SRP relied on J.E. Dunn s GMP representations and entered into a contract with Metropolitan in reliance on that representation; and J.E. Dunn failed to perform within the GMP and underestimated its cost of performance by approximately $20 million, which damaged SRP. J.E. Dunn argues that SRP has failed to allege any facts to support its contention that the GMP representation was false. The counterclaim, however, alleges that J.E. Dunn failed to investigate subcontractor costs and that it became apparent to all that J.E. Dunn would not be able to complete the Project within the GMP and all parties attempted to work together to remedy the situation. (ECF No. 64 ¶¶ 12, 14). J.E. Dunn next argues that SRP has failed to allege any facts to establish that J.E. Dunn should have known that, if its actual construction costs exceeded the GMP, SRP would be damaged. 17 The whole purpose of a GMP is that if costs run over, it is the contractor, not the designer, who bears the injury. SRP responds by arguing that [t]he natural and probable result of missing the GMP by such an unconscionable margin is that no one, save J.E. Dunn, gets what it bargained for. The miscalculation forced J.E. Dunn to conspire with Metropolitan to terminate SRP. Metropolitan has a halfbuilt church. SRP gets a diminished reputation and only a portion of the development management fee for which it bargained. (ECF No. 37, at 17). most favorable to Even taking all allegations in the light SRP, it has not adequately pled alleged false statement would have caused SRP injury. is not alleged to have failed to perform its how the J.E. Dunn contractual obligations to continue building the Project after the GMP was breached; breached. SRP terminated SRP also does the contract not allege before that J.E. the Dunn GMP had was no intention of paying for any cost overruns. SRP seems to argue that allegedly J.E. Dunn should know that its grossly underestimated GMP would cause SRP injury, but does not at all explain how that can be the case. It is not at all apparent, even taking all allegations in the light most favorable to SRP, how J.E. Dunn s underestimation caused SRP injury when (1) J.E. Dunn never breached the GMP; and (2) J.E. Dunn never demanded that SRP or Metropolitan pay for costs in excess of the GMP. 18 The Agreement provided that all costs beyond the GMP would be paid by J.E. Dunn. SRP was protected from underestimations, regardless of how widely off-base they were. Absent allegations explaining how J.E. Dunn s alleged misrepresentation concerning the costs of the Project would, if relied upon by SRP, cause it harm, SRP has failed to allege sufficiently a claim of negligent misrepresentation.6 III. Conclusion For the foregoing reasons, J.E. Dunn s motion to strike SRP s amended answer, counterclaim, and cross-claim or, in the alternative, to dismiss the amended counterclaim will be granted in part and denied in part. amended pleading is the The motion to strike is denied; the operative pleading. dismiss the amended counterclaim is granted. The motion to A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 6 In addition, it is seriously doubtful that SRP could rightly rely on the GMP, given that the later-signed Agreement provides that J.E. Dunn and SRP shall establish the GMP at a later point, once J.E. Dunn is furnished with the drawings and specifications from SRP s architect. There is no indication that this official GMP was ever arrived at. (ECF No. 33-3 § 4.2.4). 19

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