Retirement Communities LLC v. United States

92 Fed. Cl. 587, 2010 U.S. Claims LEXIS 259, 2010 WL 2109340
CourtUnited States Court of Federal Claims
DecidedMay 19, 2010
DocketNo. 09-343 C
StatusPublished

This text of 92 Fed. Cl. 587 (Retirement Communities LLC v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Retirement Communities LLC v. United States, 92 Fed. Cl. 587, 2010 U.S. Claims LEXIS 259, 2010 WL 2109340 (uscfc 2010).

Opinion

OPINION AND ORDER

HEWITT, Chief Judge.

Following Hurricane Ivan and other storms, Retirement Communities LLC (Retirement Communities or plaintiff) entered into Lease No. EMA-HFSE04-05-L-4177 (Lease) with the United States government acting through the Federal Emergency Management Agency (FEMA, the United States, the government, or defendant) to lease residential property in Pensacola, Florida (Property). The parties have filed cross-motions for summary judgment to determine whether the government was required to pay water and sewage connection and impact fees (Utility Fees) to Emerald Coast Utilities Authority (ECUA) by the terms of the Lease.

I. Background

Before the court are Defendant’s Motion for Summary Judgment (defendant’s Motion or Def.’s Mot.), docket number (Dkt. No.) 14, filed December 7, 2009; Defendant’s Proposed Findings of Uncontroverted Fact (defendant’s Facts or Def.’s Facts), Dkt. No. 15, filed December 7, 2009, accompanied by three exhibits (defendant’s Exhibits) or Def.’s Exh(s).); Plaintiffs Cross Motion for Summary Judgment (plaintiffs Motion or [590]*590PL’s Mot.), Dkt. No. 16, filed December 7, 2009, accompanied by eight exhibits (plaintiffs Exhibit(s) or Pl.’s Exh(s).); Defendant’s Response to Plaintiffs Proposed Findings of Uncontroverted Fact (defendant’s Response to Facts or Def.’s Resp. Facts), Dkt. No. 21, filed January 29, 2010; Defendant’s Response to Motion for Summary Judgment (defendant’s Response or Def.’s Resp.), Dkt. No. 22, filed January 29, 2010; Plaintiffs Response to Defendant’s Motion for Summary Judgment and an accompanying Memorandum of Points and Authorities in Support of Plaintiffs Response to Defendant’s Motion for Summary Judgment (plaintiffs Response or Pl.’s Resp.), Dkt. No. 23, filed January 29, 2010; Defendant’s Reply to Response to Motion for Summary Judgment (defendant’s Reply or Def.’s Reply), Dkt. No. 26, filed February 12, 2010; and Plaintiffs Reply to Defendant’s Response to Plaintiffs Cross Motion for Summary Judgment (plaintiffs Reply or Pl.’s Reply), Dkt. No. 27, filed February 12, 2010. The court held oral arguments on Tuesday, April 6, 2010. See Order of March 12, 2010, Dkt. No. 28; Oral Argument Transcript (Tr.), Dkt. No. 30.

In support of their positions, the parties each submitted identical copies of the Lease, the Lease Rider and Lease Addendum A, see Def.’s Exh. 2; Pl.’s Exh. 1; identical copies of the Declaration of Stephen E. Sorrell (Sor-rell Declaration or Sorrell Deck), see Def.’s Exh. 3 at 1-3; Pl.’s Exh. 5 at 1-3; and identical copies of the ECUA Board Report, see Def.’s Exh. 3 at 4-8; Pl.’s Exh. 5 at 4-8. Because the parties submitted identical copies of the Lease, Lease Rider, Lease Addendum A, the Sorrell Declaration and the ECUA Board Report, the court will cite directly to these documents rather than to the parties’ exhibits.

Five provisions in the Lease bear’ on the responsibility of the government as lessee: (1) the government was “responsible for direct payment of all utility bills,” Lease Addendum A, ¶ B; (2) the government was to “leave any infrastructure installed as requested by the lessor,” Lease Addendum A, ¶ F; (3) the government was responsible for “the construction of improvements (including ... utilities ...) as the Government determines necessary and/or expedient in connection with the establishment and operation of temporary housing facilities,” Lease Rider ¶ 2; (4) the government was required “to install sewer, water, electrical utilities ... as may be necessary and/or convenient to establish and operate temporary housing facilities,” Lease Rider ¶ 3; and (5) the government agreed that “all real estate improvements shall inure to [plaintiff] at the end of the Lease term,” Lease Rider ¶ 5. See Tr. 5:17-6:4, 9:5-16, 10:10-11:7, 11:20-25 (Mr. Reed).

Retirement Communities filed its Complaint (Complaint or Compl.) on May 28, 2009. See Dkt. No. 1. In its Complaint, plaintiff asserts that “[t]he Government constructively changed and negated its obligations under the terms of the Lease” and that plaintiff “is entitled to an equitable adjustment of $170,829 as a result of this constructive change.” Compl. ¶ 26. Plaintiff further asserts that “[t]he Government breached its express and implied contractual obligations under the terms of the Lease ... when it failed to ensure that the water and sewer services of the Property were intact and operational at the end of the lease term” and that it is “entitled to breach of contract damages of $170,829.” Compl. ¶ 27 (emphasis added).

II. Legal Standards

A. Jurisdiction

In the Tucker Act, Congress authorized the United States Court of Federal Claims to “render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliq-uidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2006). Plaintiffs claim is brought under the Contract Disputes Act (CDA), 41 U.S.C. §§ 601-613 (2006).

The CDA requires that “[a]ll claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer [591]*591for a decision.” 41 U.S.C. § 605(a) (2006). Jurisdiction is appropriate under the CDA when a contractor “submit[s] in writing to the contracting officer a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim.” Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed.Cir.1987). Retirement Communities submitted a written claim to the Contracting Officer (CO) on April 4, 2008, giving adequate notice of the basis and amount of the claim. Pl.’s Exh. 7 at 1. The CO denied the claim in its entirety on May 30, 2008. See Pl.’s Exh. 8. Plaintiff met the jurisdictional requirements of the CDA by timely appealing the denial of its written, certified claim. See 41 U.S.C. § 609(a) (allowing contractor to bring an action directly in the United States Court of Federal Claims within twelve months of receipt of CO’s decision).

B. Cross Motions for Summary Judgment

Under Rule 56 of the Rules of the Court of Federal Claims (RCFC), summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”1 RCFC 56(c); see Anderson v. Liberty Lobby, Inc. (Anderson), 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (reviewing Rule 56(c) of the Federal Rules of Civil Procedure (FRCP)); Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc.,

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Cite This Page — Counsel Stack

Bluebook (online)
92 Fed. Cl. 587, 2010 U.S. Claims LEXIS 259, 2010 WL 2109340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/retirement-communities-llc-v-united-states-uscfc-2010.