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Bradley Construction, Inc v. Clark & Sullivan Builders

October 11, 2011

BRADLEY CONSTRUCTION, INC., PLAINTIFF AND APPELLANT,
v.
CLARK & SULLIVAN BUILDERS, INC., DEFENDANT AND RESPONDENT.



(Super. Ct. No. 06AS02256)

The opinion of the court was delivered by: Raye , P. J.

Bradley Construction v. Calrk & Sullivan Builders

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Clark & Sullivan Builders, Inc. (Clark) was the general contractor on the construction of a new transportation maintenance and operations relocation facility for a school district. Plaintiff Bradley Construction, Inc. (Bradley) entered into a subcontract with Clark to provide site preparation, clearing, and earthwork for the project.

Bradley filed a complaint for breach of contract and other equitable claims seeking additional compensation under the subcontract. Clark filed a motion for summary judgment, arguing Bradley's claims were time barred. The trial court granted the motion. Bradley appeals, arguing the subcontract provision relied on by the court is ambiguous and unreasonable. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Clark served as general contractor on the construction of a transportation maintenance and operations relocation facility for the Tahoe Truckee Unified School District (District). Bradley was one of Clark's subcontractors, responsible for site preparation, clearing, and earthwork.

The Bradley subcontract provided for a lump sum payment of $258,400. Modifications of the subcontract were through approved written change orders, sometimes called "back charges." The base contract plus net total approved change orders totaled $309,341.07.

Sections 2 and 3 of the subcontract provided: "Section 2. Scope of Work. . . . Subcontractor also acknowledges that it has carefully reviewed and examined this contract with all of its contract documents, and all other documents directly or indirectly relating to this contract; and that any and all prior ambiguities and discrepancies have previously been clarified and corrected.

"Section 3. Contract Price and Payment. The Contractor agrees to pay the Subcontractor for furnishing the materials and performing the work as specified herein the sum of Two Hundred Fifty-Eight Thousand Four Hundred Dollars ($258,400.00). . . . Partial payments will be made to the Subcontractor in an amount equal to 90 percent of the value of work and materials incorporated in the construction as estimated by the Contractor . . . less the aggregate of previous payments, but such partial payments shall not be due or paid to the Subcontractor until the 15th of the month or three (3) days after the Contractor receives payment for such work and materials from the Owner, whichever event occurs later. Subcontractor waives all right of action until said monies are received by the Contractor. Final payment shall be due when work described in the Contract is complete and final payment for said work is received by Contractor from Owner. The acceptance by Subcontractor of final payment shall constitute a release by the Subcontractor in favor of Contractor and its surety of all claims against Contractor and its surety arising under or by virtue of this Subcontract other than those claims excepted with the written consent of the Contractor. . . ."

Section 12 of the subcontract states: "Legal Forum. Any dispute or claim arising out of this contract, or from a breach of this contract, and which is not resolved by the terms and provisions of this contract, shall be submitted to the judicial court within the county and state of Contractor's designated principal place of business for decision. . . . Any claim or action by the Subcontractor must be commenced within two years of the date of the cause of action accrued, but in no event later than one year after substantial performance of this Contract, and in no event after final payment to the Subcontractor. . . ." (Italics added.)

Bradley finished work on the project on or before September 1, 2003. On September 2, 2003, a certificate of substantial completion for the project was issued. The District, on December 12, 2003, recorded the notice of completion for the project.

Clark made numerous requests to Bradley for backup documents for Bradley's invoices that exceeded the amount authorized under the subcontract. These requests spanned the ...


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