Nashville Painting Corporation (NPC) vs Ray Bell Construction Company (Bell)

LAW CASE: Nashville Painting Corporation (NPC) vs Ray Bell Construction Company (Bell)

1. INTRODUCTION

The suit was seen as a cause from Nashville Painting Corporation (NPC), which is the defendant and a subcontractor, to recover their losses from the alleged extra-contractual work that was done by the plaintiff, known as Ray Bell Construction Company (Bell). The suit was also due for the balance that was stated within the contract. Ray Bell Construction Company was known to have entered within the contract with the Georgia Building Authority for a sum of $17,935,000.00 in order to build the Wilcox County Prison, situated in Georgia. The contract was later taken over the by the Georgia State Financing and Investment Commission. To serve as surety on the contract, the Insurance Company of North America also served.

 

In the month of February 1990, Bel subcontracted NPC to work for it and perform the painting supplements on the project of the Wilcox County Prison. NPC began the painting work upon the project in the first week of May 1991, following a series of delays. The project was already under severe problems and delays by the time NPC had begun its painting work. Inspectors from the Georgia state as well as the project’s owners betrothed the project in regard to its walls, steel frames, masonry work, and even the ceilings as well as concrete slabs. However, NPC had painted according to the specifications that were given from May 1991 to June 1991.

 

Since the problems within the structure of the project were being condemned, the superintendent of the project was replaced with two people, namely Dennis and Joe Howell. The project was then subsequently shut down by the Howells, who ensured that problematic areas were reconstructed and worked upon. The reconstruction included major parts that had already been painted upon by NPC. IN the month of March 1992, the president of NPC. Dale Shivers, verbally requested the contractor at Bell to compensate for the damages and expenses that were caused to NPC for the rework that needed to be done. In response, Bell’s project manager, namely Keith Pyle, agreed to pay $19,800.00 to NPC on the basis that NPC would complete the work by the end of 29^th May, 1992. Subsequently, Bell refused to pay NPC

WITNESSES

• Bill Gibson, the job superintendent for NPC, Dale Shaver, the president NPC, Joe Howell, the job superintendent for Bell, and Keith Pyle Keith Pyle from Bell who is the project manager were key witnesses in this case.
• Shaver testified on behalf of NPC that painting that was due under the subcontract had been completed by June 1992. It was also stated that all painting done during June and September was extra to any contract. On the other hand, Howell and Pyle testified that from June until September, NPC’s painters were doing contract work, which according to the facts brought before this court is not the truth.

 

 

QUESTIONS PRESENTED

1. IT will be considered as to whether or not Ray bell Construction Company and the North American Insurance company breached the contract or did not breach the contract when it comes to the question of not being able to complete all of the work that was mandated in the contract by the end of 1992, June 1^st.
2. It will also come into question as to whether or not Ray Bell Construction Company will have to pay NPC the $16,800.00 is question for the extra amount of work that the construction company had derived from NPC after the contractual work had ended. This includes the repainting work. Whether ray bell construction co. Inc. and insurance company of North America breached the contract by claiming payment for work performed after June 1, 1992.
3. It will also be considered as to whether or not NPC deserves the payment that was due for the amount of work that was done on repainting upon the damaged surfaces, that were not audible for construction or working purposes due to the causes and defects in the performance of Ray bell Construction Company. It will be considered in this regard as to whether or not NPC is entitled to the extra amounting work’s money under the quantum merit basis.
4. It will also be considered as to whether or not the construction company of Ray Bell and the North American Insurance Company breached their own contract or violated it in some manner when they decided that the written change orders of the subcontract had been waivered by the mentioned companies in their own accordance.
5. It will also be questioned as to whether or not the contract was breached in terms of not paying NPC for the extra amount of work that they did by Ray Bell Construction Company and North American Insurance Company.
6. It will also be kept in notice to make sure that whether or not the additional work done can be remunerated in terms of money since Ray Bell construction company had not obtained any writer change order.

 

1. STATEMENT OF FACTS

Bell hired Kenneth Duncan, Inc. to reinforce NPC’s work force so that the work could be completed in adequate time. This was done in the month of June, 1992. Bell claims that part of Duncan’s work consisted of areas that were responsibility of NPC to paint upon. However, Bell does not dispute that part of Duncan’s work was not mentioned in the NPC contract. Shaver was notified in June by Bell that whatever expenses were incurred for Duncan’s work, they would be deducted from NPC’s subcontract.

 

On the other hand, Bell says that NPC had not completed its contracted work by the beginning of June and that by the end of 24^th June, 1992, there was still some work items remaining that were part of NPC’s contract and had not been completed.  Such measures led to the filing of a suit against Bell and the Insurance Company of North America by NPC in January of 1993. This suit was filed in order to claim the payment of the balance that had been due under the subcontract. The amounts were $83,490.00 and furthermore payments and additional expenses that had been incurred following extra-contractual work with Bell by NPC. It is also ridiculous to see Bell filing a counter-claim for the breach of contract by their own terms.

 

In the days between September and June, NPC was working on the site with punch list painting and was mostly repainting areas that had been disrupted due to defaults and problems in other working departments of the project. A bell witness testifies that NPC employees were seen performing paint upon areas that were damaged or had to be repainted for some other reason. NPC claims that it had completed its contract by 1^st June, 1992, in terms of the contract. NPC submitted a request for the extra work that it had allegedly performed, but NPC was refused further payments by Bell.

 

The trial court should award NPC with $19,800.00 for the verbal agreement between Ray Bell Construction Company (Bell). The award comes beforehand because NPC did resume on the project, worked on it and was directed as to where to paint and how to paint by the Howells. NPC’s superintendent, Bill Gibson, testified on numerous accounts that Bell’s representatives would order the NPC employees to paint upon improper and inconvenient surfaces. Shaver also testified that the NPC employees were made to paint on surfaces, which were dirty, damp and lit.

 

• ARGUMENT

The policy of Bell claims that NPC had to paint whenever and wherever Bell demanded. However, the contract requirements of the change orders that were written as well as said verbally were completely ignored by authorities at Bell. The testimonial claims from the witnesses, namely Gibson and Shaver, show that the matter and conflicts should be quickly resolved in favour of NPC, in terms of the contract that was signed in May, 1992, agreeing to pay NPC $19,800.00 more for the extra work that had been done by NPC in the following months of the repainting work. There were also many evidence of how the painting had been defected due to Bell’s superintendent’s policy of “when and where Bell says to paint”. The policy saw the painting done on inadequate surfaces, surfaces that were either damp, light, or dirty, as well as damaged or repaired surfaces which weren’t reliable for painting techniques. This was the cause that was imminently going to increase the overall expenses incurred by Bell. Still, the paintings were accepted by the superintendents as well as other authorities from Bell. When the condemnations followed form investigators, NPC was reassured by Bell’s project managers, Peter and Pyle, as well as the superintendent, Joe Howell that the investigators were their problem and that Shaver, NPC’s president, did not need to worry at all.

 

Hence, it can be concluded that Bell and authorities of Bell had accepted the work that was performed by NPC in conditions and situations and times here Bell was in full control and had full command. This goes to show that Bell had waived their own written changes agreement by accepting the work performed by NPC. NPC also maintains the position that Bell had accepted the defective painting results and was also partly responsible for such defective painting. Moreover, Bell had caused certain damages to the work done by NPC, which had to be redone later on and constituted into a compensation for NPC on a quantum merit basis.  Since the work that was performed by Ken Duncan’s painters was also extra-contractual work, it should have been mentioned in the agreement of May between Bell and NPC. NPC, therefore, claims the compensation of $16,889.00 for the work that was done by the NPC as a consequence of the changes that were issued by Bell and that were not submitted by Bell to NPC for the pricing of such painting within the previous change orders. Moreover, NPC is also entitled to the compensation of $19,800.00 within the May 1992 contract and the extra $37,548.00 for the work that was performed after the 1^st of June, 1992. This claim also included the amount of $79, 654.00 that was due under the work that had been done in the subcontract. NPC has also been able to complete all the contractual obligations that were made by 1^st June, 1992. NPC has been entitled to compensation for any extra work that it had to do from the months of June till the month of September, 1992.

 

Moreover, it is simply clear as to what the problems and issues have been so far in this case and how these problems and issues can be resolved by the court without further wastage of time and resources, both of the government as well as the defendant and the plaintiff. It is also worth noting that Bell has been able to lie through most of the witnesses that were represented by it, in the manner that all the testaments that were made by Bell authorities have been proven to be wrong after NPC witnesses were found to testify against Bell authorities on their own accusations. Furthermore, the topic is even more perceptual in the manner that it has foreseen the use of manipulation and lies by bell authorities in which Bell has been able to further lengthen the process of the contract rather than pay it and be done with it. The resolve seems quite clear and quite beneficent for the parties that have been victimized following the practices of Bell. Moreover, it is also under consideration that Bell has not only been improper to the virtues of the work that it has brought under its own wings but it has also been unreliable throughout the project as it is observed as to how quickly the entire project had seen multiple problems and issues arise within it and how Bell had ensued to ignore such reasons and problems for as long as possible. Not only did it incur losses and damages for itself, but it also violated terms of contract with other parties and put other parties at risk of financial loss and damages as well. Moreover, instead of apologizing for its practices, Bell has been able to manipulate and use other parties for more work, for which it was reluctant to pay and even filed counter claims. It is also worth noting that the entire problem of Bell is the fact that it has also been unethical in its methodology of work and commitment to contracts. This is because Bell used NPC for further work without even considering to pay to them. Moreover, it is outrageous that Bell had first agreed to pay compensation to NPC but then it had decided to deduct compensation from NPC in the form of ridiculous expenses that were not even bound to NPC. IN other terms, the ethical activities and practices made by Bell are enough to award NPC a reward and recovery on its own primitive basis and structure.

 

Since the Plaintiff claims that there has been untruthfulness from the witnesses, the court should adopt the presumption of correctness. This will maintain unless there is preponderance of the evidence otherwise. In Bowman v. Bowman, 836 S.W.2d 563 (Tenn. App. 1991), the court explained:

“…the trial judge alone has the opportunity to observe the manner and demeanor of the witness while testifying.  Indeed, the trial judge, on an issue which hinges on witness credibility, will not be reversed unless there is found in the record concrete and convincing evidence, other than the oral testimony of the witnesses…”

 

The court should also dismiss the counter-claim made by Bell that NPC had breached its subcontract in the manner that it had failed to perform the work adequately and in the manner in which the painting specifications had been made due. Therefore, Bell also alleges that it is entitled to a full recovery by NPC of the expenses that were incurred by hiring Ken Duncan and his workers. The evidence, however, preponderates that majority of the alleged defective painting was a result of Bell’s practice to decide where and when NPC would paint. Numerous times, NPC was ordered to paint at inadequate surfaces and surfaces that were repaired or still damaged, and were still lit, dirty or even damp at several points. It is also evidenced that the construction of the project was basically sloppy and had consisted of poor workmanship throughout the construction. Therefore, this also resulted in NPC being forced to paint over surfaces that were not properly constructed or built. Moreover, NPC was also made to repaint over pieces of work that had to be redesigned or reconstructed after problems rose. In the light of these new evidences, in conclusion, the court should dismiss the counter-claim that has been made by Bell and should also be able to come to the conclusion that NPC did not breach any terms of the contract or subcontract that it was bound to. It is also concluded that the counter-claim by bell is ridiculous and just further wastage of time as it is improbable in any way, in light of recent evidence, that NPC had been subject to violation or breach of contract when it had successfully completed its job, as to when and where it was directed to paint by the Bell authorities, followed their policy without any objection, and only filed a suit after its request for compensation on expenses that were incurred for the extra work had been rejected by bell in turns.

 

CONCLUSION

In the end, Bell also argues that NPC is not bound to any compensation for any additional work since NPC was unable to comply ad meet the subcontract’s requirements of obtaining a written change order. The subcontract of NPC and Bell has a written change order that states the following:

Article XIII – Should alterations or actual work be hereunder required…no changes are to be made, however, except upon a written change order from contractor before the work is commenced, and contractor shall not be held liable to subcontractor for any extra labour, materials, or equipment furnished without such written order.

Bell’s argument is not conclusive in the mere manner that the work that was performed from June till September by NPC was, as it has been found, contractual work. Therefore, the contract provision requiring a written change order does not seem applicable in the work that was performed as it the work that was performed by NPC fell under the matter of the previously written subcontract.  Therefore, this court should easily be able to base the quantum merit theory where the party that receives a benefit under the circumstances in which it would have been impossible to receive such benefits without paying compensation has to pay the amount of compensation that is due for the extra work that has been done without any compensation given for it. Jaffe v. Bolton, 817 S.W.2d 19, 26 (Tenn. App. 1991).