LLC v. Wild Bill's Surplus, Inc. (2011)

MEMORANDUM OF DECISION

In April 2007, the parties contracted for the construction of a commercial building by the plaintiff Colchester Carpet, LLC (hereinafter C.C.) for the defendant Wild Bill's Surplus, Inc. (hereinafter W.B.).   The contract called for partial payments to be made as the work progressed.   The entire contract price was $412,000.   In total C.C. was paid $371,244 leaving in issue the unpaid balance of $40,756.

C.C. filed a mechanic's lien for $38,000 exclusive of interest, attorneys fees and costs, but claims the total amount due is $38,700 after all credits which are due to W.B.

When C.C.'s final bill was submitted to W.B., W.B. claimed various items were not complete or were completed improperly, either not according to contract or poor workmanship.   C.C. had completed a punch list, but W.B. submitted a second punch list, which C.C. declined to complete because it was still owed money according to their contract.   That stance led to the present litigation which includes the mechanic's lien and a counterclaim by W.B. for some $40,000 for workmanship defects or contractual violations.

These issues are hereinafter discussed.

1. Improper installation of the vinyl siding:

C.C. claims the entire vinyl siding needs to be replaced because there are places where the siding was butted together instead of being overlapped properly.   The replacement of the entire siding was estimated by W.B.'s expert to be $15,150.   There was also testimony that only a small portion needed replacing (about 400 square feet), and that it is not unusual for repairs to siding.   Also, a small portion of a gutter should be re-nailed for more support.   The Court concludes that $3,500 should be an adequate cost of these repairs.   In addition, W.B. is entitled to a credit (as agreed to by the parties) of $1,500 for a less expensive siding than the specs called for (which was not available at the time).

2. Defects on the front walkway:

Any problems with the sidewalk are primarily caused by W.B.'s use of the sidewalk.   It routinely ran a heavy fork-lift on the walk, using it to display heavy items.   The sidewalk was expected to be used for pedestrian traffic and not heavy equipment.   Again, W.B. seeks compensation to remove and rebuild the entire walkway which was misused by W.B., and was the primary cause of its damage.   Minor remedial work to the sidewalk awarded to C.C. of $500.

3. Crooked joint between store aisles:

This is agreed to be a correctable defect.   The estimated repair cost is $750.

4. Location of the HVAC unit:

The proposed location of the HVAC presented a problem about locating the return duct.   An agreement was reached to move the HVAC unit about eight feet and that change was approved by the building inspector, the architect and W.B. It was moved with the knowledge of the defendant and its relocation was approved by the building inspector, who issued a Certificate of Occupancy.   The Court declines to award damages for this complaint.

5. Fire Separation Door:

The door in question was approved by the town building inspector.   W.B.'s expert's position that the inspector “just missed it” is insufficient to prove otherwise.

In conclusion the Court finds the plaintiff, C.C. has substantially completed the project in accordance with the contract and is entitled to be paid the balance of the contract price, subject to adjustments, as follows:

Unpaid balance of contract $40,756

Unpaid extras $ 8,570

Subtotal:  $49,326

Agreed credits -$10,626

Sidewalk repairs -$ 500

Crooked joints -$ 750

Subtotal:  $11,876

Total owed to Colchester Carpet:  $37,450

The case flow coordinator shall schedule a hearing date to determine costs, attorneys fees, interest and orders of foreclosure of the mechanic's lien.

Klaczak, J.T.R.

Klaczak, Lawrence C., J.T.R.