Conn v. United States

Court of Claims

Conn v. United States

366 F.2d 1019, 177 Ct. Cl. 319

United States Court of Claims·Decided October 14, 1966·No. No. 158-61·Published·Cited by 4 cases

Opinion

Per Curiam:

Footnotes

*

Tbis opinion is not concerned with the merits of this action. By agreement and at the request of the parties the sole question presented for decision at this time is the extent to which the plaintiffs’ several claims are time-barred.

A brief discussion of the development of the case into its present posture is appropriate, especially in view of the age of the case and the fact that the defendant has yet to file an answer.

The suit arises out of eleven contracts, identical in all relevant respects, awarded plaintiffs between May 21, 1952 and July 24, 1952, by the Army Corps of Engineers for the construction of certain buildings at Charleston Air Field, Charleston, South Carolina.

The petition, drawn in two counts, was filed here on April 24,1961. Count One pleads twenty-eight separate instances, covering all eleven contracts, in which it is alleged that the defendant improperly failed to award plaintiffs’ equitable adjustments. Count Two pleads a series of alleged breaches of the same contracts presumably based on the same occurrences that are the subjects of the twenty-eight claims advanced in Count One. Verbiage aside, this subject matter overlap is conclusively demonstrated by the following averment contained in both the original petition and the later-filed amended petition (Count Two, par. 4):

Petitioner hereby stipulates and agrees that if any of the Items 1 through 21¹ are favorably considered, to deduct the amount so allowed for such item by this Honorable Court from the Second Cause of Action; likewise, petitioner hereby agrees to dismiss either the First Count or the Second Count if either should be considered favorably in its entirety.

Similarly, the prayers in the two petitions seek alternative, not cumulative relief under the two counts pleaded.

[322] On October 23, 1961, the defendant moved for summary judgment on the ground that neither count of the petition stated a claim on which relief could be granted. By an order of February 2, 1962, the court denied defendant’s motion.

On June 20, 1962, after allowance of defendant’s motion for a more definite statement, the plaintiffs filed an amended petition, in two counts, essentially similar to the original.

Instead of renewing its motion for a more definite statement, the defendant again moved for summary judgment. This time it urged that claims one through five of Count One failed to state a claim on which relief could be granted. In addition, the defendant contended that all of the remaining claims of Count One as well as the breach claims contained in Count Two were barred by the expiration of the statute of limitations.

After hearing argmnent, the court, by an order of May 20, 1963, dismissed claims one through five of Count One and otherwise denied defendant’s motion without prejudice, remanding the case to the trial commissioner for further proceedings. On July 12, 1963, the court denied defendant’s motion for clarification and amendment of this order.

Thereafter counsel for the parties met with the trial commissioner and agreed that the case should be presented on the basis of a review of the administrative record, which record (consisting of papers contained in ten packing cases) was received in evidence as were the parties’ exhibits previously filed in the two summary judgment proceedings.

After arrangements were thus concluded for proceeding under an assignment of errors to be filed by the plaintiffs, but before any submissions had been filed pursuant thereto, counsel again approached the commissioner and requested that the agreed procedure be vacated and the threshold question of limitations be isolated for final decision.

In accordance with request of counsel, the commissioner issued an order of severance under Buie 47 (b) and prescribed a schedule for the seriatim submission of requested findings of fact and briefs.

The opposing contentions of the parties may be briefly gtated. As initially presented, the defendant’s contention was that the claims herein asserted are only timely to the extent [323] that the court finds that they were embraced by the standard disputes clause contained in each of the eleven contracts in suit so that administrative fact-finding was both mandatory and exclusive by virtue of the parties’ contractual undertakings and the provisions of the Wunderlich Act, 41 USC § 321. Such claims are timely, the defendant conceded, because it is undisputed that each of the several proceedings before the Armed Services Board of Contract Appeals terminated less than six years prior to institution of the present suit. With respect, however, to those claims as to which the court feels free to make its own original factual determinations, the defendant contended that suit is barred because the construction contracts out of which the claims arose were completed, and the work done thereunder formally accepted, more than six years before filing of the instant suit. Later, the defendant expanded its argument (after the Government’s position was clarified as a result of the presentation of Nager Elec. Co. v. United States, decided this day, ante, p. 234) to contend that the entire suit was barred since the petition was filed more than six years after completion and acceptance of the work.

For their part, the plaintiffs have contended that all of the claims sued on are timely whatever .their intrinsic nature, because it was not until approximately one year prior to filing of the petition here that the plaintiffs received their final vouchers and estimates under the contracts in suit. It was not until then, plaintiffs say, that it was clear that no further work would be required of them under the contracts, and it is therefore at that time that all claims arising out of the contracts first accrued for purposes of suit.

The relevant contract provisions and operative facts are detailed in the findings of fact accompanying this opinion. Each of the eleven contracts contained the standard clauses covering: (1) Changes and Extras, (2) Changed Conditions, (3) Delays-Damages, (4) Suspension of Work, and (5) Disputes.

Each of the claims pleaded in Count One of the amended petition was presented to and considered by the contracting officer and the Armed Services Board of Contract Appeals.

[324] It is agreed by the parties that in none of the eleven contracts in suit were proceedings before the ASBCA. concluded more than sis years prior to institution of suit in this court.

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