Munns Manufacturing, Inc. v. Saint Dimitrie Romanian Orthodox Church (2010)

ORDER

Based on the evidence and findings of the hearing entitled Primrose Construction Company v. St. Dimitrie Romanian Orthodox Church, Docket No. FBT CV09 5023147-S (Levin, J.), the motion for summary judgment and the present matter is granted.

The defendant, Saint Dimitrie Romanian Orthodox Church (Church) has moved for summary judgment with respect to a mechanic's lien filed by the plaintiff, Munns Manufacturing, Inc. They are not contesting the plaintiff's right to seek additional equitable relief.

On July 9, 2007, the plaintiffs, Munns Manufacturing, Inc., signed a contract with Primrose Construction Company (Primrose) for $222,723 to a install prefabricated dome and cupolas on the roof of a church being built by Primrose.   At approximately the same time the plaintiffs were completing the installation of the dome and cupolas, Primrose left the job site requiring the church to complete the project itself.   Subsequently, Primrose, along with other subcontractors, including the plaintiff, filed mechanic's liens on the property.   There was a hearing to terminate the mechanic's lien filed by Primrose in the amount of $241,424.11.   After several days of testimony and evidence and Judge Levin reached the following conclusions.

The initial contract with the general contractor totaled $2,954,250.00.   There was an additional $99,970.10 in change orders in the course of the contractor's performance.   The church paid Primrose $1,500,795.15 at the time of their vacating the job.   The court found that the defendant paid in excess of $3,000,000.00 to complete the work which Primrose had agreed to perform.   The court found that this is an unreasonable amount and of that total only $300,000.00 was for upgrades outside the party's contract.   In summary, the church paid approximately $2,000,000.00 more than would have been owed to the general contractor had he completed the job in a workmanlike manner.   Aside from finding that the general contractor did not complete the job in a workmanlike manner the court concluded that there was no balance or funds available for the general contractor, and in effect, the subcontractors to lien.

The plaintiff Munns Manufacturing, Inc., claims that of the plaintiff's contract price for $2,227,213.00 there is a balance of $167,723.00 remaining due and owing which is the amount of their claimed mechanic's lien.

The basic claim to the motion for summary judgment by Munns is that Primrose did not list the cost of the domes in their proposal to the church one month before they signed their contract.   The plaintiffs also claim that the fact that the progress billing # 15 which was submitted at the time of the discharge also failed to list them as a payable account.   They claimed that the domes are a “specialty item” owed by the church under § 4.4.3.5 of the contract between Primrose and the church.

The actual phrasing of § 4.4.3.5 is as follows:  “This contract excludes all kitchen equipment, hall furniture, furnishings, window treatments, wall coverings other than painted interior finish and carpentry, installation of icons, and iconostas, speciality items not shown on plans, utility company charges not known at this time, and other owner supplied items.   Aside from the obvious reference in the section to personal property and the adornments added during construction of the church and not a $222,000.00 portion of the roof, it is limited to ‘items not shown on plans.’ “

The plans for the construction of the church are dated from March 10, 2003 to September 24, 2004 (Ex. 1 of the hearing to discharge mechanic's lien).   The dome and the cupola are illustrated on approximately 50% of the extensive plans and specifications for the construction of the church.   As was indicated, the contract by the plaintiff with the general contractor was dated July of 2007 and at that time the dome and cupola were “shown on the plans.

The testimony at the hearing before Judge Levin indicated that Primrose had represented that they were going to actually construct the dome and the cupola themselves.   The president of Primrose testified that Munns was not listed in the last progress payment because the domes and cupola had not been completely installed at the time they were leaving the project.

The omission by Primrose of the contract amount with Munns in their initial bidding proposal and their last progress payment report is actually irrelevant with respect to any direct obligation on the part of the church.   Whether the omission by Primrose was § imply financial negligence or financial deception, Munns had a contract with Primrose for payment of $222,000.00 to install a dome and a cupola on the roof of the church according to the plans and specifications and Primrose had a contract to build the church for a specific amount.

There was no documentary evidence or affidavit indicating any independent contract, request or purchase of the dome and cupola by the church directly from the plaintiff.   The only evidence submitted relating the church and the dome and cupola are two change orders with respect to the dome dated September 20, 2007 and October 17, 2007 totaling $23,000.

Summarily, the plaintiff was a valid subcontractor of Primrose who would have been entitled to file a mechanic's lien under the contract.   According to Judge Levin's decision, however, there were actually $2 million to complete the project over and above the general contractor's agreed price and, as such, there is no balance owing or fund from which the plaintiff, Munns Manufacturing Inc., could recover a lien.

Therefore, motion 139, requesting summary judgment, is granted and motion 141, objection to summary judgment, is overruled.

GILARDI, J.T.R.

Gilardi, Richard P., J.T.R.