L&W Supply Corporation v. Greenway Enterprises, Inc.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cv-00333-TSE-TCB Copies to all parties and the district court/agency. [999228481].. [12-2370]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-2370

L&W SUPPLY CORPORATION, trading as Building Specialties,
United States of America for the use and benefit of,
Plaintiff - Appellee,
v.
GREENWAY ENTERPRISES, INC.; THE GUARANTEE COMPANY OF NORTH
AMERICA USA,
Defendants – Appellants,
and
LCJ AND ASSOCIATES LLC; ELIZABETH MUTTER, f/k/a Elizabeth
Hubbard,
Defendants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:12-cv-00333-TSE-TCB)

Argued:

September 17, 2013

Decided:

October 29, 2013

Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Palmer Hoovestal, HOOVESTAL LAW FIRM, PLLC, Helena,
Montana, for Appellants.
James Charles Judkins, COWLES,
RINALDI, JUDKINS & KORJUS, LTD., Fairfax, Virginia, for

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Appellee. ON BRIEF: Ralph D. Rinaldi, COWLES, RINALDI, JUDKINS
& KORJUS, LTD., Fairfax, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
The Miller Act, 40 U.S.C. § 3131 et seq., requires that a
prime

contractor

performing

a

construction

project

for

the

federal government costing in excess of $100,000 post a payment
bond to protect those who have a direct contractual relationship
with a contractor or subcontractor. See J. W. Bateson Co., Inc.
v.

United

Sprinkler

States

ex

Indus.

Pension

Defendant-appellant
entered

into

a

amount

exceeding

rel.

Bd.

Fund,

U.S.

Nat.

Automatic

586,

587

Inc.

(“Greenway”)

government

to

434

of

the

with

$100,000

Trustees

Enterprises

Greenway

contract

of

federal

provide

labor

and

(1978).

for

an

materials

necessary to improve a federal facility. Greenway posted the
necessary

bond,

with

defendant-appellant

Guarantee

Company

of

North America (“GCNA”) acting as surety.
Greenway then subcontracted with LCJ and Associates, LLC
(“LCJ”), a firm run by Charles and Elizabeth Mutter, to perform
some of the work on the project. The Mutters had previously
operated their business through a sole proprietorship known as
LC Property Improvements (“LC Property”). They considered LCJ to
be the successor company to LC Property. LC Property had an open
credit account with plaintiff-appellee L&W Service Corporation
(“L&W”),

which

supplied

the

Mutters

with

materials

for

the

project. The Mutters paid for a portion of those materials, but
L&W sought recovery of the additional balance from Greenway and
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GNCA. The district court granted summary judgment on behalf of
L&W and awarded it $64,794.63.
The sole issue before this court is whether the district
court properly granted summary judgment on behalf of L&W, which
required a determination of the underlying question of whether
L&W was a proper Miller Act claimant. We review the district
court’s grant of summary judgment de novo. Shipbuilders Council
of Am. v. U.S. Coast Guard, 578 F.3d 234, 243 (4th Cir. 2009).
Appellants

claim

that

LCJ

and

LC

Properties

were

distinct

companies, and that L&W had a contract only with LC Properties,
which

had

no

contractual

relationship

with

Greenway.

The

district court rejected this argument, determining that LCJ was
the

successor

company

to

LC

Properties.

Consequently,

the

district court held that L&W had a contractual relationship with
LCJ, and was entitled to recovery under the Miller Act.
We

affirm

on

the

reasoning

of

the

district

court,

as

articulated in its October 26, 2012 motions hearing. See Motions
Hearing, L&W Supply Corp. v. LCJ & Assoc., LLC, No. 1:12-cv-333
(E.D.V.A. Oct. 26, 2012). As the court below noted, the Mutters
treated LCJ as the successor to LC Property and acted as if
there was a contractual relationship between L&W and LCJ. LCJ
paid for materials from L&W with LCJ checks. LCJ, then, was
clearly the successor company of LC Property and maintained a

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contractual relationship with L&W. Therefore L&W is a proper
Miller Act claimant and is entitled to relief.
AFFIRMED

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