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Tumlinson Group, Inc. v. Johannessen

October 26, 2010

TUMLINSON GROUP, INC., PLAINTIFF,
v.
SCOTT D. JOHANNESSEN, ET AL. DEFENDANTS.
SCOTT JOHANNESSEN, ET AL., COUNTER-CLAIMANTS,
v.
TUMLINSON GROUP, INC., ET AL., COUNTER-DEFENDANTS.



ORDER

A hearing was held in this matter on October 7, 2010. Douglas MacDonald appeared for plaintiff Tumlinson Group, Inc., and counter-defendant Kenneth Tumlinson. Defendant Scott Johannessen appeared in propria persona and as counsel for Lorrie Johannessen. Upon review of the motion and the documents in support and opposition, and good cause appearing therefor, THE COURT MAKES THE FOLLOWING FINDINGS:

FACTUAL BACKGROUND

Plaintiff and counter-defendant Tumlinson Group, Inc., ("TGI") is a general contractor and builder doing business in and around Sacramento County. TGI is owned by plaintiff and counter-defendant Kenneth Tumlinson*fn1 ("Tumlinson"). Defendants Scott and Lorrie Johannessen are husband and wife currently residing in Tennessee.

On May 15, 2005, the parties entered into a contract for landscaping work on the defendants' backyard ("the landscaping contract"). The estimate on this contract was $40,000.00. On August 29, 2005, the parties entered into a second contract for home improvement ("the home improvement contract") at the defendants' home. The contract price for this was $812,504.99.

During the course of both of these contracts, there were multiple "change orders" (a.k.a. "Additional Work Order Authorizations"). Plaintiff asserts that there were forty-two change orders. Of these change orders, plaintiff claims (a) some were a full and complete writing, (b) some were a partial writing and oral instructions with approval, and (c) some were made and approved orally. The total cost for the changes made pursuant to the change orders was $531,188.23. Plaintiff claims defendant paid $196,944.16 of that amount, leaving a remaining balance of $334,315.32. Plaintiff also claims that the balance due on the home improvement contract is $25,704.57. Plaintiff seeks a total recovery of $360,019.89, plus interest and attorneys' fees.

Defendants assert that there were forty-four change orders, forty of which were not in writing, were not signed by either of the defendants, and were not submitted to defendants for approval before commencement of work. Defendants seek reimbursement of the amount they claim they paid beyond the contract prices.

PROCEDURAL BACKGROUND

On May 16, 2008, defendants filed a complaint with the California Contractors State License Board ("the CSLB") against TGI and Tumlinson for alleged violations of Cal. Bus. & Prof. Code § 7159. Section 7159 requires that all home improvement contracts and all change orders be in writing and signed by the parties prior to the commencement of any work. On July 28, 2008, the CSLB issued a violation letter to TGI for the failure to comply with the written requirements of section 7159 ("the CSLB citation"). On August 28, 2008, defendants filed a second complaint with CSLB again alleging violations of section 7159. On June 5, 2009, the CSLB issued a citation and assessed a $250.00 civil penalty against TGI.

On July 29, 2008, TGI filed a state court action in the Sacramento County Superior Court. On April 20, 2009, the matter was removed to this court. Plaintiff sues defendants for breach of contract, quantum meruit, an open book account, and an account stated for sums due on the home improvement contract.

On May 11, 2009, defendants filed an answer and counter claims. Defendants assert that TGI and Tumlinson violated section 7159 and that defendants overpaid on the home improvement contract. They present the following claims: unlawful business practices, violation of statute, breach of contract, accounting, restitution, and declaratory relief.

On October 9, 2009, this matter was reassigned based on the consent of the parties. The case is scheduled to go to trial on December 14, 2010. This will be a bench trial.

STANDARD

"After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). A Rule 12(c) motion may ask for judgment on the basis of plaintiff's "[f]ailure to state a claim upon which relief can be granted." Id. 12(h)(2)(B). Such a motion is essentially equivalent to a Rule 12(b)(6) motion to dismiss, so a district court may "dispos[e] of the motion by dismissal rather than judgment." Sprint Telephony PCS, L.P. v. County of San Diego, 311 F. Supp. 2d 898, 902-03 (S.D. Cal. 2004).

Under Federal Rule of Civil Procedure (8)(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court has explained that the pleading standard rests on two principles. First, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. While showing an entitlement to relief "does not require 'detailed factual allegations,'... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Twombly, 550 U.S. at 555). Second, "only a complaint that states a plausible claim for relief survives a motion to ...


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