OPINION OF THE BOARD ON MOTION TO DISMISS

AND MOTION FOR SUMMARY JUDGMENT

Respondent has filed a motion to dismiss this appeal, stating three grounds: (1) that the appeal is premature; (2) that Appellant seeks interest at a rate that exceeds the rate allowed under the Contract Disputes Act and (3) that Respondent is entitled to judgment based on the undisputed facts in the record. Appellant has filed an opposition to the motion. The following findings of fact are made for purposes of deciding this motion.

FINDINGS OF FACT

1. Under a lease dated August 8, 1994, Respondent leased the premises used for the St. John, Kansas Post Office, for the term October 1, 1995, through September 30, 2000 (Appeal File, Tab (“AF”) 24).

2. Appellant acquired the property on March 9, 1998 (AF 16).

3. On April 6, 1998, Appellant sent Respondent a copy of PS Form 7461, Certificate of Transfer of Title to Leased Property, which included the March 9 notarized signature of the former owner acknowledging that the property had been sold to Appellant, that the lease had been assigned to Appellant and that after the first of April all rent payments should be made to Appellant. The Certificate was also signed by Appellant, signifying his confirmation of the transfer. (AF 20, 23).

4. Respondent made the April rent check payable to the former owner and sent it to the former owner on or about April 29, 1998. The former owner endorsed the check to Appellant and sent it to him. Appellant received the check. (AF 4, 8, 16).

5. The May, June and July rent checks were also made payable to and sent to the former owner, who endorsed them and sent them to Appellant. Appellant cashed those checks. (AF 4).

6. The April rent check has never been cashed (AF 5).

7. Upon proper application by Appellant, Respondent will stop payment on the original and reissue the check for the April rent, and Appellant has been repeatedly advised of this avenue of receiving the payment (AF 1, 3, 5).

8. On October 26, 1998, after the parties exchanged correspondence about the April rent payment, Appellant filed a claim demanding that Respondent pay the April rent (AF 8). He repeated the claim on January 28, 1999 (AF 4).

9. On March 2, 1999, Appellant reasserted his claim and asked Respondent to “open a case before the Board of Contract Appeals” if it would not pay the claim. (AF 2).

10. The contracting officer forwarded the March 2 letter to the Board, and it was docketed as the notice of appeal.

DECISION

Respondent’s argument that the appeal is premature is without merit. The claim was filed October 26, 1998, and the contracting officer failed to decide it within 60 days as provided by the Contract Disputes Act (41 U.S.C. §605(c)(2) & (5)). Accordingly, Appellant’s March 2, 1999 notice of appeal is not premature. Even if we were to consider the January 28, 1999 letter to be the claim, the contracting officer has now had the full 60 days to consider the claim and has failed to issue a final decision. The Board therefore has jurisdiction over the appeal. See Lee Ann Wyskiver, PSBCA No. 3621, 94-3 BCA ¶ 27,118.

Interest may be recoverable under the Contract Disputes Act on amounts, if any, eventually recovered by Appellant. That he has claimed a rate higher than might be allowed under the Contract Disputes Act and that interest is only recoverable if Appellant prevails on the underlying claim are not bases for dismissing his interest claim.

Respondent’s final argument is that the appeal must be dismissed because the sole basis for the appeal—that Appellant never received the April rent payment—has been shown to be incorrect.[1] Appellant’s claim, as set forth in his Complaint, is that he never received the rent due him for April 1998. However, in his correspondence (Finding 4) and in his response to the motion, Appellant admits receiving the April rent check that had been endorsed to him by the previous owner. He could have cashed the April check as he did those for May, June and July (Finding 5), but for some reason he did not (Finding 6). Therefore, while it is true that Appellant has not received the benefit of the April payment, his entitlement to rent for April 1998 is not in dispute. Upon proper application, Respondent will replace the April rent check if it has been lost, as Appellant has been advised many times (Finding 8). Under these circumstances, as a matter of law, Appellant cannot show injury resulting from any breach by Respondent of its obligations under the lease with respect to the April rent. Cf. Interstate Coatings, Inc. v. United States, 7 Cl. Ct. 259, 262-263 (1985). Furthermore, Appellant has alleged no facts that would support a claim for interest or administrative fees.

The motion for summary judgment is granted. The appeal is denied.

Norman D. Menegat

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman

[1] On this issue, Respondent’s motion is mischaracterized as a motion to dismiss. The motion addresses the merits of Appellant’s claim and should have been a motion for summary judgment. Appellant was provided an opportunity to file a response to the motion and did so, also addressing the merits of the appeal. Because Appellant has had adequate opportunity to respond to the motion, we consider this motion as one for summary judgment. See Automated Power Systems, Inc., DOTBCA Nos. 2925 et al., 98-2 BCA ¶ 30,059.