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.

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,

(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.,

(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.