Construction Law Insights

M&C Hauling & Constr., Inc. v. Hale, 2018 Va. Cir. LEXIS 114 (Cir. Ct. Fairfax Cnty. June 28, 2018)

In June of 2014, William Hale d/b/a Mulch, Topsoil and Stone (“MTS”) and Hauling Unlimited (“HU”) entered into a subcontract for HU to provide truck hauling services for a construction project at the Joint Base Andrews in Prince George County, Maryland (the “Project”). HU then subcontracted those same services to M&C Hauling and Construction, Inc. (“M&C”). From June to July of 2014, M&C provided 2,020.25 hours of debris hauling services for the Project. Written sales tickets on HU letterhead were generated daily, reflected the day’s date, listed the hours worked on that date, and were signed by MTS’ project manager (the “Daily Tickets”). The price term of $75.00 per hour was not shown on the Daily Tickets, but was later included in an invoice dated August 9, 2014. On February 1, 2018, M&C filed a complaint against HU alleging that MTS and/or HU failed to pay M&C $86,456.23 for 1,152.75 hours of labor from June and July of 2014. HU argued that M&C’s claim was barred by Virginia’s three-year statute of limitations for unwritten contracts (Va. Code § 246(4)). 

Alone, the plain language of Virginia’s statutes of limitation for unwritten and written contracts suggests that a written contract must be signed by the party being charged with the breach. The text of Virginia’s statute of limitations provides that a party must file “an action upon any unwritten contract, express or implied, within three years” (Va. Code § 8.01-246(4)), whereas a party must file an action “on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years” (Va. Code § 8.01-246(2)). The Supreme Court of Virginia, however, has determined that “an unsigned agreement all terms of which are embodied in a writing, unconditionally assented to by both parties, is a written contract.” Dixon v. Hassell & Folkes, P.C., 283 Va. 456, 460 (2012). Therefore, Dixon’s definition of a written contract removes the signature requirement for unsigned written agreements that are not conditioned upon a party’s signature. 

Here, all terms of the agreement between M&C and HU, including the rate and hours worked, were committed to writing in M&C’s Daily Tickets and invoice. These terms were unconditionally assented to by the parties. Although there was no signature by HU, the parties did not make their signatures a condition precedent to the formation of the contract. Thus, the Court determined that the agreement between HU and M&C was a written contract under Dixon’s definition, Virginia’s five-year statute of limitations applied to the written contract (Va. Code § 8.01-246(2)), and M&C’s complaint was not barred by Virginia’s statute of limitations.

PLDR Law Mark Burgin 1 PLDR Law Scott Kowalski 1 Wolf Tom v2 Stout Kenneth 2016

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