Osgood v. Kent 11-CV-477-SM 11/26/12 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jeffrey Osgood d/b/a JP's Concrete, Plaintiff
v. Case No. ll-cv-477-SM Opinion No. 2012 DNH 195 George and Evelyn Kent, Defendant
O R D E R
Pro se plaintiff, Jeffrey Osgood, brings this action seeking
damages for defendants' alleged breach of contract. Under the
parties' contract, Osgood was to have done certain shoring,
demolition, and concrete work on defendants' property. Osgood
claims to have partially performed his obligations, but says
defendants unlawfully terminated the contract before he could
complete his work. He seeks compensation for work actually
performed, as well as lost profits. Defendants deny any
wrongdoing and counterclaim that Osgood actually breached the
contract by failing to perform in accordance with its
specifications. They seek damages for their alleged losses.
Defendants move for summary judgment, asserting that there
are no genuinely disputed material facts and claiming that they
are entitled to judgment as a matter of law. Osgood objects.
For the reasons discussed, defendants' motion is necessarily
denied. Standard of Review
When ruling on a motion for summary judgment, the court must
"view the entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences in
that party's favor." Griqqs-Rvan v. Smith, 904 F.2d 112, 115
(1st Cir. 1990). Summary judgment is appropriate when the record
reveals "no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). In this context, "a fact is 'material' if it
potentially affects the outcome of the suit and a dispute over it
is 'genuine' if the parties' positions on the issue are supported
by conflicting evidence." Int'l Ass'n of Machinists & Aerospace
Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st
Cir. 1996) (citations omitted).
Background
In September of 2010, Osgood entered into a contract with
defendants, Lynn and George Kent. In exchange for payment of
approximately $190,000.00, Osgood agreed to perform jacking,
shoring, demolition, and concrete work on a structure known as
Ogontz Hall. The Kents acted as general contractors of the
project, with the assistance of Bruce Stewart, whom the Kents
engaged as their structural engineer, and John Dawson, their
onsite representative.
2 Ogontz Hall is an unusual (and somewhat unconventional)
structure. It is a multi-level, predominantly post and beam,
timber-framed building, with approximately 9,000 square feet of
space on the first level. The structure's major support columns
consist of more than 40 un-sawn native pine trees, with framing
connections consisting largely of mortise and tenon joinery, with
steel lags and bolts. As a result of the building's unusual
design, the support columns can exert point loads as high as
38,000 pounds on the foundation walls. It is, then, critical
that the building's foundation be particularly sturdy.
When the Kents discovered that the building's original
foundation was structurally deficient, they fired their architect
and solicited bids from various contractors to demolish the
original pre-cast foundation, and replace it with conventional
column footings and a cast-in-place foundation. Osgood was
awarded the job and entered into a contract with the Kents to
perform the specified work. The contract itself is relatively
brief, and consists of just two pages plus a six-item list that,
in general terms, outlines the services to be provided by Osgood.
It does, however, incorporate by reference the so-called
"Contract Documents," which are defined to include the
architectural drawings, as well as the engineering drawings and
specifications.
3 After doing some site work and then jacking and shoring the
structure, Osgood poured the footings for the walls on October
27, 2010. And, once the Kents' representative inspected and
approved the footing work and rebar, Osgood constructed the wall
forms and was ready to pour concrete by November 19. At that
point, the Kents apparently experienced some delay in paying for
the footing work, which delayed the next phase of Osgood's work
(and allowed the forms and rebar to be exposed to the elements
for longer than anyone had expected). But, by December of 2010,
they brought their account with Osgood current and he poured the
concrete foundation wall. Upon inspection (and subsequent
testing), however, the Kents' structural engineer was not
satisfied with the quality of the concrete Osgood used and
concluded that his work on the wall needed to be redone. Osgood
disagreed. By letter dated May 6, 2011, the Kents terminated
their contract with Osgood and this litigation ensued.
According to the Kents, the "Contract Documents" that were
incorporated by reference into their contract with Osgood specify
that the concrete foundation wall must have a compressive
strength of 4,000 pounds per square inch ("psi"), after 28 days
of curing. Although they have identified numerous alleged
deficiencies in the foundation wall that Osgood poured, the
4 Kents' primary complaint is that subsequent testing revealed that
it did not meet the 4,000 psi requirement.
Neither party has submitted copies of the so-called Contract
Documents. Consequently, the court cannot determine the precise
scope of Osgood's obligations under the contract or the standards
by which his work was to have been measured. And, while the
Kents assert that those documents required Osgood to order (and
use) a 4,000 psi concrete mix, Osgood denies that the contract
contained such a requirement. See Osgood Deposition (document
no. 37-2) at 291. Instead, says Osgood, he was merely required
to provide a concrete wall which, after 28 days of proper curing,
would have a compressive strength of 4, 000 psi. .Id. at 293.
And, although he acknowledges that he ordered a "3,000 psi wall
mix" from the concrete supplier, Osgood says he delivered a wall
that met the specifications set forth in his contract. In
support of that position, he points to testing performed on the
concrete used in the wall (and taken directly from the supply
truck on the day of the pour), which showed that, when properly
cured, the concrete had a compressive strength in excess of 4,000
psi. See, e.g.. Affidavit of Bruce Stewart, Project Engineer
(document no. 47-5) at para 49.
5 The Kents, on the other hand, stress the fact that
subsequent testing of concrete samples removed from the finished
wall showed a compressive strength of less than 4,000 psi. But,
says Osgood, the different test results (that is, between the
samples taken directly from the concrete truck and those taken
from the cured wall) can be explained by the fact that the Kents
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Osgood v. Kent 11-CV-477-SM 11/26/12 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jeffrey Osgood d/b/a JP's Concrete, Plaintiff
v. Case No. ll-cv-477-SM Opinion No. 2012 DNH 195 George and Evelyn Kent, Defendant
O R D E R
Pro se plaintiff, Jeffrey Osgood, brings this action seeking
damages for defendants' alleged breach of contract. Under the
parties' contract, Osgood was to have done certain shoring,
demolition, and concrete work on defendants' property. Osgood
claims to have partially performed his obligations, but says
defendants unlawfully terminated the contract before he could
complete his work. He seeks compensation for work actually
performed, as well as lost profits. Defendants deny any
wrongdoing and counterclaim that Osgood actually breached the
contract by failing to perform in accordance with its
specifications. They seek damages for their alleged losses.
Defendants move for summary judgment, asserting that there
are no genuinely disputed material facts and claiming that they
are entitled to judgment as a matter of law. Osgood objects.
For the reasons discussed, defendants' motion is necessarily
denied. Standard of Review
When ruling on a motion for summary judgment, the court must
"view the entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences in
that party's favor." Griqqs-Rvan v. Smith, 904 F.2d 112, 115
(1st Cir. 1990). Summary judgment is appropriate when the record
reveals "no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). In this context, "a fact is 'material' if it
potentially affects the outcome of the suit and a dispute over it
is 'genuine' if the parties' positions on the issue are supported
by conflicting evidence." Int'l Ass'n of Machinists & Aerospace
Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st
Cir. 1996) (citations omitted).
Background
In September of 2010, Osgood entered into a contract with
defendants, Lynn and George Kent. In exchange for payment of
approximately $190,000.00, Osgood agreed to perform jacking,
shoring, demolition, and concrete work on a structure known as
Ogontz Hall. The Kents acted as general contractors of the
project, with the assistance of Bruce Stewart, whom the Kents
engaged as their structural engineer, and John Dawson, their
onsite representative.
2 Ogontz Hall is an unusual (and somewhat unconventional)
structure. It is a multi-level, predominantly post and beam,
timber-framed building, with approximately 9,000 square feet of
space on the first level. The structure's major support columns
consist of more than 40 un-sawn native pine trees, with framing
connections consisting largely of mortise and tenon joinery, with
steel lags and bolts. As a result of the building's unusual
design, the support columns can exert point loads as high as
38,000 pounds on the foundation walls. It is, then, critical
that the building's foundation be particularly sturdy.
When the Kents discovered that the building's original
foundation was structurally deficient, they fired their architect
and solicited bids from various contractors to demolish the
original pre-cast foundation, and replace it with conventional
column footings and a cast-in-place foundation. Osgood was
awarded the job and entered into a contract with the Kents to
perform the specified work. The contract itself is relatively
brief, and consists of just two pages plus a six-item list that,
in general terms, outlines the services to be provided by Osgood.
It does, however, incorporate by reference the so-called
"Contract Documents," which are defined to include the
architectural drawings, as well as the engineering drawings and
specifications.
3 After doing some site work and then jacking and shoring the
structure, Osgood poured the footings for the walls on October
27, 2010. And, once the Kents' representative inspected and
approved the footing work and rebar, Osgood constructed the wall
forms and was ready to pour concrete by November 19. At that
point, the Kents apparently experienced some delay in paying for
the footing work, which delayed the next phase of Osgood's work
(and allowed the forms and rebar to be exposed to the elements
for longer than anyone had expected). But, by December of 2010,
they brought their account with Osgood current and he poured the
concrete foundation wall. Upon inspection (and subsequent
testing), however, the Kents' structural engineer was not
satisfied with the quality of the concrete Osgood used and
concluded that his work on the wall needed to be redone. Osgood
disagreed. By letter dated May 6, 2011, the Kents terminated
their contract with Osgood and this litigation ensued.
According to the Kents, the "Contract Documents" that were
incorporated by reference into their contract with Osgood specify
that the concrete foundation wall must have a compressive
strength of 4,000 pounds per square inch ("psi"), after 28 days
of curing. Although they have identified numerous alleged
deficiencies in the foundation wall that Osgood poured, the
4 Kents' primary complaint is that subsequent testing revealed that
it did not meet the 4,000 psi requirement.
Neither party has submitted copies of the so-called Contract
Documents. Consequently, the court cannot determine the precise
scope of Osgood's obligations under the contract or the standards
by which his work was to have been measured. And, while the
Kents assert that those documents required Osgood to order (and
use) a 4,000 psi concrete mix, Osgood denies that the contract
contained such a requirement. See Osgood Deposition (document
no. 37-2) at 291. Instead, says Osgood, he was merely required
to provide a concrete wall which, after 28 days of proper curing,
would have a compressive strength of 4, 000 psi. .Id. at 293.
And, although he acknowledges that he ordered a "3,000 psi wall
mix" from the concrete supplier, Osgood says he delivered a wall
that met the specifications set forth in his contract. In
support of that position, he points to testing performed on the
concrete used in the wall (and taken directly from the supply
truck on the day of the pour), which showed that, when properly
cured, the concrete had a compressive strength in excess of 4,000
psi. See, e.g.. Affidavit of Bruce Stewart, Project Engineer
(document no. 47-5) at para 49.
5 The Kents, on the other hand, stress the fact that
subsequent testing of concrete samples removed from the finished
wall showed a compressive strength of less than 4,000 psi. But,
says Osgood, the different test results (that is, between the
samples taken directly from the concrete truck and those taken
from the cured wall) can be explained by the fact that the Kents
did not properly tent and heat the concrete after it was poured.
In other words, Osgood says that, unlike the test sample taken
from the concrete truck, the wall did not properly cure because
it was not adequately protected from the cold. And, says Osgood,
because his work was originally scheduled to be completed far
earlier in the season, his bid did not include any tenting or
heating services - work he says he would have happily provided if
the Kents had agreed to pay him for it. Instead, in an effort to
save money, he says the Kents assigned responsibility for tenting
and heating the wall to their onsite agents - work that was
apparently never performed. See Osgood Affidavit (document no.
47-2) at para. 23. See also Affidavit of John Dawson (document
no. 47-1) at para. 20 ("Payment [to Mr. Osgood] was made in
December 2010 and the Kents expressed [a] desire to move forward.
[A]t this time Mrs. Kent and I discussed the need for winter
conditions for the concrete. I informed her that I could deliver
insulating blankets to the site for placement by David Pratt,
onsite handyman. Mrs. Kent informed David Pratt that I would be
6 dropping off insulating blankets and he should use them to
insulate the concrete.").
Perhaps not surprisingly, the Kents have a different
explanation for the variances in the test results. They say that
after at least a portion of the wall was poured, the concrete
supplier changed the mix it was sending to the jobsite by adding
more cement (thereby making it stronger). And, say the Kents,
the sample on which Osgood relies was taken from one of those
later deliveries. They suggest that if a sample had been taken
from the earlier concrete deliveries, testing would have revealed
that it does not have the contractually-required 4,000 psi
compressive strength.
On this record, it is entirely unclear which party is
correct. It is, however, clear that there are genuinely disputed
material facts that preclude the court from ruling, as a matter
of law, that Osgood breached his obligation under the contract to
provide a concrete wall with 4,000 psi compressive strength,
after 28 days of proper curing. As to the remaining alleged
deficiencies in Osgood's work (e.g., using improper fasteners and
anchors, spraying release agent on rebar, leaving rebar exposed
to the elements, etc.), Osgood says each of those alleged
deviations from the engineering drawings was specifically
7 approved by the Kents' onsite agents, who were supervising and/or
observing all of Osgood's work, including John Dawson. See
Osgood Deposition at 284-86.
Conclusion
In light of the foregoing, there are plainly disputed issues
of material fact that preclude the entry of judgment as a matter
of law in favor of defendants. Their motion for summary judgment
(document no. 3_6) is, therefore, denied. To the extent that
plaintiff's objection to summary judgment (document no. 4/7) might
also be construed as a motion to recuse defendant's counsel of
record, that motion is also denied. See Local Rule 7.1(a) (1)
("All motions must contain the word 'motion' in the title. . .
Objections to pending motions and affirmative motions for relief
shall not be combined in one filing.").
SO ORDERED.
St'even J./McAuliffe United States District Judge
November 26, 2012
cc: Jeffrey Osgood, pro se David P. Cullenberg, Esq.