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AP Alternatives, LLC v. Rosendin Electric, Inc.

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

August 16, 2019

AP ALTERNATIVES, LLC, Plaintiff,
v.
ROSENDIN ELECTRIC, INC., et al., Defendants.

          MEMORANDUM OF OPINION AND ORDER

          PAMELA A. BARKER U.S. DISTRICT JUDGE.

         Currently pending is Plaintiff AP Alternatives, LLC's (hereinafter “APA”) Motion For Leave To File Second Amended Complaint And Memorandum In Support Thereof (hereinafter “Plaintiff's Motion)”. (Doc. No. 33.) Defendants NextEra Energy Services Ohio, LLC, NextEra Energy Solutions, LLC and DG AMP Solar, LLC (collectively, the “NextEra Defendants”) filed a Response in Opposition on December 18, 2018. (Doc. No. 36.) Defendant Rosendin Electric Inc. (hereinafter “Rosendin”) filed a Response in Opposition on December 18, 2018. (Doc. No. 37.) APA filed a Reply Memorandum on December 26, 2018. (Doc. No. 38). For the reasons stated below, APA's Motion is GRANTED IN PART AND DENIED IN PART.

         I. Procedural History

         On September 24, 2018, APA filed its First Amended Complaint (hereafter “FAC”) alleging four causes of action. (Doc. No. 21.) In its first claim or cause of action titled “Action on Account” APA alleged that Rosendin owed APA on an account, a copy of which was attached as Exhibit “B” to the FAC; this claim or cause of action did not apply to the NextEra Defendants. (Doc. No. 21, p 4.) In its second claim or cause of action titled “Breach of Contract” APA alleged that Rosendin had breached a written contract entered into with APA, a copy of which “Long Form Agreement” was attached as Exhibit “A” to the FAC; this claim or cause of action did not apply to the NextEra Defendants. (Doc. No. 21, p 5.) In its third claim or cause of action titled “Unjust Enrichment, in the Alternative” APA alleged that Rosendin had been unjustly enriched at the expense of and to the detriment of APA because APA completed work on a certain “Project”[1] for which it was not paid, but: 1.) Rosendin was paid; and 2.) the NextEra Defendants have a completed facility for which they have not paid. (Doc. No. 21, pgs. 5-6.) In its fourth and final claim or cause of action titled “Foreclosure of a Mechanic's Bond” APA alleged in relevant part that Rosendin posted a Mechanic's Bond in place of a Mechanic's Lien APA obtained, and APA and Rosendin approved the Bond and discharged the Lien. (Doc. No. 21, pgs. 7-8.) As to the NextEra Defendants, APA merely alleged that although Defendant NextEra timely filed the Notice of Commencement, they failed to provide APA with a copy of it, despite APA's request for it.[2] (Doc. No. 21, p. 7.)

         On October 9, 2018, Rosendin filed a Motion to Dismiss Count Three of APA's FAC and Motion for Summary Judgment regarding Count Four of APA's FAC, and a Memorandum in Support thereof. (Doc. No. 24 and Attachment No. 1.) On October 9, 2018, the NextEra Defendants filed a Motion to Dismiss APA's FAC, and a Memorandum in Support thereof (Doc. Nos. 25, 26), arguing that APA's FAC failed to state a claim upon which relief could be granted regarding all counts set forth against them. On November 29, 2019, APA filed its Memorandum in Opposition to the NextEra Defendants' Motion to Dismiss (Doc. No. 31), and its Memorandum in Opposition to Rosendin's Motion to Dismiss Count Three and Motion for Summary Judgment as to Count Four (Doc. No. 32.) On December 13, 2018, the NextEra Defendants filed their Reply in support of their Motion to Dismiss, and Rosendin filed its Reply in support of its Motion to Dismiss Count Three and Motion for Summary Judgment on Count Four. (Doc. Nos. 34, 35.) Meanwhile, on December 4, 2018, APA moved for leave to file a second amended complaint. (Doc. No. 33.)

         Attached as Exhibit “1” to APA's Motion is its proposed Second Amended Complaint (hereinafter, “SAC”). (Doc. No. 33-1.) The SAC names an additional defendant, Federal Insurance Company (hereinafter “Federal”), and only the seventh claim for relief or cause of action titled “Action on Mechanic's Bond”, is directed to Federal, as surety on the Mechanic's Bond. Attached to the SAC as Exhibit “A” is the same contract attached as Exhibit A to the FAC, but in the SAC it is referred to as the “Subcontract”. (Doc. No. 21, Ex. A; Doc. No. 33, Ex. A, at p. 3, ¶ 13.)

         As to the NextEra Defendants, the SAC sets forth the following additional claims or causes of action against them:

1. the first claim for relief titled “Action on Account” which alleges that the NextEra Defendants agreed to purchase on account materials, labor, and/or equipment from APA for installation of solar panel racking for the “Project”[3] (Doc. No. 33-1, p. 5);[4]
2. the second claim for relief titled “Reformation of Contract due to Mutual Mistake of Fact” which alleges that the NextEra Defendants (and Rosendin and APA) mistakenly relied upon the Geotech Report[5] regarding the subsurface conditions of the Project “Location”[6] in entering into the Subcontract and this mutual mistake requires reformation of the Subcontract to reflect the parties' intentions, i.e., APA's scope of work included all excavation necessary to perform the scope of work and APA would be paid the original amount of the Subcontract plus the cost of all materials, labor and/or equipment APA supplied to so perform (Doc. 33-1, pgs. 5-6);
3. the third claim for relief titled “Breach of Contract” which alleges that the NextEra Defendants, as intended third-party beneficiaries of the Subcontract entered into by and between APA and Rosendin, breached the Subcontract by failing to pay to APA the additional costs incurred by it in performing additional work to complete the Project and comply with the Subcontract (Doc. 33-1, p. 7);[7]
4. the fourth claim for relief titled “Breach of Contract - Cardinal Change”, which alleges that the alterations or changes the NextEra Defendants made to the terms of the Subcontract constituted a “Cardinal Change” that breached the Subcontract, proximately resulting in damages to APA (Doc. 33-1, p. 8); and
5. the fifth claim for relief titled “Breach of Implied Warranty Against the NextEra Defendants—Spearin Doctrine”, which alleges that the NextEra Defendants breached their implied duty to provide accurate information to APA regarding the subsurface conditions of the Location, proximately resulting in damages to APA (Doc. 33-1, pgs. 8-9).

         Unlike the FAC, the SAC does not include any allegations against, or mention of, the NextEra Defendants associated with the “Action on Mechanic's Bond.”[8] Like the FAC, the SAC does include a claim or cause of action against the NextEra Defendants for unjust enrichment.[9] (Doc. 33-1, p. 10.)

         As to Rosendin, the SAC sets forth the following additional claims or causes of action against it:

• the second claim for relief titled “Reformation of Contract due to Mutual Mistake of Fact” which alleges that Rosendin (and the NextEra Defendants and APA) mistakenly relied upon the Geotech Report regarding the subsurface conditions of the Project “Location” in entering into the Subcontract and this mutual mistake requires reformation of the Subcontract to reflect the parties' intentions, i.e., APA's scope of work included all excavation necessary to perform the scope of work and APA would be paid the original amount of the Subcontract plus the cost of all materials, labor and/or equipment APA supplied to so perform (Doc. 31-1, pgs. 5-6); and
• the fourth claim for relief titled “Breach of Contract - Cardinal Change”, which alleges that the alterations or changes Rosendin made to the terms of the Subcontract constituted a “Cardinal Change” that breached the Subcontract, proximately resulting in damages to APA

(Doc. 33-1, p. 8).

         Like the FAC, the SAC includes claims for relief or causes of action against Rosendin for: “Action on Account” (First Claim for Relief); “Breach of Contract” (Third Claim for Relief); and “Unjust Enrichment” (Sixth Claim for Relief). (Doc. Nos. 33-1 and 21.)

         II. Arguments of the Parties and Decisions of the ...


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