Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LP v. Thompson Thrift Construction, Inc.

United States District Court, S.D. Ohio, Eastern Division

June 25, 2014

84 LUMBER COMPANY, LP, Plaintiff/Counterclaim Defendant,
v.
THOMPSON THRIFT CONSTRUCTION, INC., Defendant/Counterclaim Plaintiff.

          OPINION AND ORDER

          CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE

         Plaintiff/Counterclaim Defendant, 84 Lumber Company (“84”), a subcontractor involved in the construction of a large multi-family residential complex in Delaware, Ohio (the “Project”), brings this action against Defendant/Counterclaim Plaintiff, Thompson Thrift Construction, Inc. (“TTC”), the general contractor for the Project, in connection with a dispute arising from the Project. 84 asserts state law claims for breach of contract, violations of Ohio's Prompt Payment Act, and unjust enrichment. (ECF No. 44.) TTC asserts a counterclaim for breach of contract. (ECF No. 46.) This Court has jurisdiction pursuant to 28 U.S.C. § 1332. On March 20, 2018, the Court granted in part and denied in part 84's Motion for Partial Summary Judgment. (ECF No. 105.) This matter is before the court for consideration of TTC's Motion to Reconsider portions of that opinion (ECF No. 106), 84's Opposition thereto (ECF No. 108), and TTC's Reply (ECF No. 109). For the reasons set forth herein, TTC's Motion is GRANTED in part and DENIED in part.

         I.

         The Court incorporates by reference the factual and procedural background set forth in its March 20, 2018 Opinion and Order granting in part and denying in part 84's Motion for Partial Summary Judgment (the “Opinion”). As such, the Court references only those facts that are pertinent to the issues before it for reconsideration.

         TTC, the general contractor for a large multi-family residential complex in Delaware, Ohio (the “Project”), subcontracted portions of the Project to 84 under terms set forth in the following written agreements: (1) a Critical Requirements of the Subcontractor Agreement executed by the parties on January 16 and 17, 2014 (the “Subcontract”); (2) an Addendum executed by the parties on January 16 and 17, 2014 (the “Addendum”); and (3) two separate but identical Commercial Credit Agreements signed by TTC on March 27, 2013, and October 24, 2013 (the “Credit Agreements”).

         The Court has already ruled that both the Subcontract and the Addendum together govern the parties' relationship with respect to the Project. (Opinion 12, ECF No. 105.) By its terms, the Addendum modifies and supersedes any conflicting terms in the Subcontract. (Am. Compl. Ex. 2, ECF No. 44-2 (hereinafter, the “Addendum”), at ¶ 1.)

         A. The Addendum's Incorporation of a Credit Agreement

         The Addendum incorporates by reference a Contractor Commercial Credit Agreement as follows:

Payments: All invoices issued and payments made in connection with the Agreement shall be subject to the terms and conditions of the Contractor Commercial Credit Agreement between Contractor and Subcontractor, which is incorporated herein by reference.

(Id. at ¶ 5.)

         B. The Conflicting Provisions on a Right to Suspend Work

         The Subcontract and the Addendum contain conflicting provisions regarding a right to suspend work for nonpayment. Specifically, the Subcontract contains the following provision regarding a right to suspend work:

Should the Contractor fail to timely pay the Subcontractor amounts due under this Agreement, the Subcontractor shall advise the Contractor in writing of the nonpayment and continue performance of the Work. Should the Contractor fail to pay within 21 days of receipt of said written notice from the Subcontractor the amounts due in the Subcontractor under this Agreement . . . the Subcontractor may terminate this Agreement by providing written notice of termination to the Contractor.

(Am. Compl. Ex. 1, ECF No. 44 (hereinafter, the “Subcontract”), at ¶ 9.)

         The Addendum, on the other hand, provides a right to suspend work as follows:

If Contractor's Credit Agreement is 14 days past due or greater, 84 reserves the right to suspend this Agreement and any current project(s) and will not be held liable for any damages for such suspension.

(Addendum, ¶ 5.)

         C. The Conflicting ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.