Facts

In 2007, plaintiff Devcon Construction Inc. entered into an AIA Stipulated Sum contract for tenant improvement work with defendant Pampas Palo Alto LLC, owner of a Palo Alto restaurant. Devcon performed the tenant improvement work. The parties disputed whether there was additional work and whether Pampas was required to pay more than the stipulated sum. There were no signed change orders.

After submitting its final invoice, Devcon sued Pampas for failure to pay based on theories of breach of contract and foreclosure of mechanics' lien. Devcon also sued American Contractors' Indemnity Co., the mechanics' lien release bond surety. Prior to trial, the parties bifurcated Devcon's equitable cause of action for foreclosure of its mechanics' lien against the release bond purchased by Pampas from American Contractors'. Pampas counterclaimed, alleging it overpaid Devcon by $80,000 and that the construction was flawed. At trial, Devcon dismissed its common counts in response to Pampas motion for nonsuit on those counts.

PLAINTIFF'S CONTENTIONS:
Devcon claimed that extra work was done at Pampas' request, that Pampas waived the requirement of signed change orders, and that Pampas did not pay for the extra work.

DEFENDANT'S CONTENTIONS:
Pampas claimed that all of the work was within the scope of the original Stipulated Sum contract, denied that any extra work was done, denied that Devcon gave it any change orders, and contended that it never approved or agreed to pay for any extra work. Pampas claimed that it paid Devcon more than the contract price and that Devcon's work was defective. Pampas also claimed that Devcon improperly charged Pampas, unbeknownst to them, for items such as tools, candy, bottled water, coffee, a microwave oven, and pencils, as part of the cost of the work.

Damages

Devcon sought $564,397 for additional work it alleged it was directed to perform at Pampas' request. Devcon also sought statutory penalties under the prompt payment statutes. Pampas claimed $80,000 for overpayment, and general damages of $200,000 for construction defects concerning the restaurant's floor and HVAC system.

Result

The jury found for Devcon and awarded it $563,596. It determined Pampas had no good faith dispute for withholding payment to Devcon, who was entitled to statutory penalties of a 2 percent monthly charge on all sums paid by Pampas, but paid late. The jury also found for Devcon on Pampas' cross complaint.

Other Information

The court issued a tentative decision in Devcon's favor on the lien release bond foreclosure count in the amount of the lien ($475,465), plus interest. Post-trial proceedings are pending. Judgment has not yet been entered.

Deliberation

five hours

Poll

11-1

Length

15 days