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Phenix-Georgetown, Inc. v. Chas. H. Tompkins Co.

District of Columbia Court of Appeals

January 31, 1984, Argued ; May 15, 1984, Decided

No. 83-599

Opinion

 [*217]  Phenix-Georgetown, Inc. (Phenix) appeals the granting of summary judgment in favor of Chas. H. Tompkins, Inc. (Tompkins) on Phenix's third-party complaint against Tompkins seeking breach of contract damages for losses suffered by Phenix, as lessor, when it was sued by its tenant, Weissbard & Fields, P.C. (Weissbard). Weissbard sued Phenix to recover damages for breach of lease conditions, particularly Phenix's failure to provide adequate air conditioning, and constructive eviction. Phenix asserts on appeal that there are genuine issues of material fact outstanding between itself and Tompkins which render summary judgment inappropriate. Tompkins replies that there are no such issues and that as a matter of law Phenix is not entitled to any such damages. After review of the record, we reverse and remand.

The record indicates Phenix entered into a contract [**2]  with Tompkins in 1977 for its services as construction manager to oversee the construction of a mixed-use real estate complex called Prospect Place on property owned by Phenix in the District of Columbia. The contract 1 required Tompkins  [*218]  to "supervise and direct the work using his best skill and attention", to be "solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the contract", and to warrant that "all work will be of good quality, free from faults and defects and in conformance with the contract documents" (General Conditions 4.3.1 and 4.5.1). Tompkins hired R.E. Anderson Co. (Anderson) to install the air conditioning system. Under the contract, Tompkins was responsible to the owner (Phenix) for acts and omissions of all persons performing under the contract and for inspecting all of Anderson's work to guard the owner against defects (General Condition 4.10 and AGC Article 2.1.13).

 [**3]  Weissbard, a law firm, rented office space on the third floor at Prospect Place for a five-year term, and took possession after issuance of a certificate of occupancy on October 12, 1979. On the same date Phenix conditionally accepted the mechanical equipment, including the air conditioning system, installed by Anderson. In a letter to Tompkins, Phenix acknowledged its responsibility from that date on for servicing the equipment, but noted that its acceptance was subject to completion of the contract, final inspection, 2 [**4]  start-up 3 and submission of a "punch-list." 4 On January 25, 1980, Tompkins and the owner's architect, Metcalf Associates (Metcalf), certified the Prospect Place project as being substantially complete in accordance with the contract; 5 the certificate provided that an attached list of incomplete or unsatisfactory items did not alter Tompkins' responsibility to complete all work in accordance with the contract.

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477 A.2d 215 *; 1984 D.C. App. LEXIS 403 **

PHENIX-GEORGETOWN, INC., APPELLANT, v. CHAS. H. TOMPKINS CO., APPELLEE

Prior History:  [**1]   Appeal from the Superior Court of the District of Columbia (Hon. Paul F. McArdle, Motions Judge)

CORE TERMS

air conditioning, final payment, damages, contractor, summary judgment, installation, corrections, air conditioning system, inspection, defects, lease, notice, third party complaint, latent, subcontractor, Conditions, breach of contract, alleged defect, matter of law, third floor, one year, CONTRACTS, indemnity, parties, substantial completion, defective performance, school district, genuine issue, punch-list, pleadings

Civil Procedure, Appeals, Standards of Review, De Novo Review, Judgments, Summary Judgment, General Overview, Summary Judgment Review, Standards of Review, Burdens of Proof, Movant Persuasion & Proof, Motions for Summary Judgment, Opposing Materials, Entitlement as Matter of Law, Genuine Disputes, Discovery, Methods of Discovery, Supporting Materials, Business & Corporate Compliance, Contracts Law, Types of Contracts, Construction Contracts, Real Property Law, Purchase & Sale, Remedies, Duty to Disclose, Contracts Law, Contract Conditions & Provisions, Waivers, Torts, General Premises Liability, Dangerous Conditions, Trials, Bench Trials, Elements, Causation, Defenses, Breach, Breach of Contract Actions, Governments, Legislation, Statute of Limitations, Time Limitations, Affirmative Defenses, Statute of Limitations, Pleadings, Crossclaims, Pleading & Practice, Impleader, Rule Application & Interpretation, Judgment as Matter of Law