Fastrack Crushing Servs., Inc. v. Abatement Int'l/Advatex Assocs., Inc.
| Decision Date | 02 July 2003 |
| Docket Number | No. 2002–265.,2002–265. |
| Citation | 827 A.2d 1019,149 N.H. 661 |
| Parties | FASTRACK CRUSHING SERVICES, INC. v. ABATEMENT INTERNATIONAL/ADVATEX ASSOCIATES, INC. & a. |
| Court | New Hampshire Supreme Court |
Hall, Morse, Anderson, Miller & Spinella, P.C., of Concord (Frank P. Spinella, Jr. on the brief and orally), for the plaintiff.
Rath, Young and Pignatelli, P. A., of Concord (Brian T. Tucker on the brief and orally), for the defendants.
The defendants, Abatement International/Advatex Associates, Inc. (Advatex) and the American Guarantee and Liability Insurance Company (AGLIC), appeal an order of the Superior Court (Abramson , J.) denying their motion to dismiss the claim of the plaintiff, Fastrack Crushing Services, Inc. (Fastrack), and granting Fastrack's motion for summary judgment. The defendants raise several issues involving Fastrack's claim against a performance bond obtained by Advatex and guaranteed by AGLIC. On the basis of the defendants' first issue, regarding Fastrack's failure to comply with statutory notice procedures, we reverse.
The trial court found the following facts. Advatex is the general contractor for an asbestos abatement and building demolition contract at the Pease International Tradeport, under a contract with the Pease Development Authority (PDA), a political subdivision of the State of New Hampshire. Advatex obtained a bond, with AGLIC acting as surety, guaranteeing payment for all labor, equipment, materials and services used in PDA contracts up to $1,660,000.
Advatex subcontracted much of the building destruction work to New Hampshire Demolition, which in turn subcontracted work involving concrete crushing and removal to Fastrack. Between November 22, 1999, and January 21, 2000, Fastrack performed these services, incurring expenses for labor, equipment, materials, and services amounting to $102,744. Advatex, however, paid Fastrack only $65,200, withholding the balance of $37,544 because of a dispute regarding the duration, method, and manner of Fastrack's performance.
Pursuant to procedures outlined within the bond itself, Fastrack sent a certified notice of its claim to Advatex, AGLIC, and the PDA. Neither Advatex nor AGLIC made or denied payment for any amount due. Accordingly, Fastrack filed a writ in the superior court on August 25, 2000, requesting the amount due, interest, and attorney's fees.
The defendants moved to dismiss, arguing that: (1) Advatex was required to obtain its bond for the PDA project under RSA 447:16 (2002); and (2) Fastrack had failed to comply with the notice procedures required for statutory payment bonds under RSA 447:17 (2002) and RSA 447:18 (2002). The trial court (Coffey , J.) denied the motion, finding that RSA 12–G:30, II (Supp.2000) (current version at RSA 12–G:53, II (Supp.2002)) exempted the PDA from the bond requirement. The court also found that because Fastrack's claim arose under the terms of the bond and not the statute, a petition in equity was the appropriate form of action in the case. In lieu of dismissal, however, the court granted Fastrack leave to refile its writ as a petition in equity.
After the refiling of the claim, the defendants renewed their motion to dismiss, and the Trial Court (Abramson , J.) reconsidered it. This time, the court found that RSA 447:16 required Advatex to obtain the bond, and that Fastrack failed to meet the statutory requirement of filing a notice of the claim with the clerk of the superior court. The court, however, ruled that, despite failing to file a notice of its claim with the clerk of the superior court, Fastrack nevertheless "substantially complied" with the statutory notice requirements. Alternatively, the court found that the notice terms of the defendants' bond, which Fastrack followed, functioned as a waiver of the statutory notice requirements. The court thus denied the defendants' motion for summary judgment. Finding no "genuine issue of material fact in dispute" regarding the amount due, the court granted summary judgment for Fastrack in the amount of $52,276 plus attorney's fees and costs.
On appeal, the defendants challenge both the denial of their motion to dismiss and the granting of Fastrack's motion for summary judgment. We first consider the defendants' motion to dismiss. The defendants argue that Fastrack's petition must be dismissed because it did not comply with the statutory notice procedures of RSA 447:17 and 447:18. Although Fastrack concedes that it did not follow these procedures, it presents three counter-arguments: (1) the statutory notice provisions were inapplicable because the defendants' bond was not required by statute; (2) the bond waived the statutory notice requirements; and (3) Fastrack "substantially complied" with the statutory notice requirements.
The trial court's interpretation of a statute is a question of law, which we review de novo . See Crowley v. Frazier, 147 N.H. 387, 389, 788 A.2d 263 (2001). Likewise, the interpretation of a contract, such as the bond at issue, is ultimately a question of law for this court to decide. See Appeal of Reid , 143 N.H. 246, 249, 722 A.2d 489 (1998). We consider each argument in turn.
Fastrack first argues that the bond at issue was not required by statute, and therefore the statutory notice requirements are inapplicable. RSA 447:16 states:
Officers, public boards, agents or other persons who contract in behalf of the state or any political subdivision thereof for the construction, repair or rebuilding of public buildings ... or other public works shall if said contract involves an expenditure of $25,000 ... obtain as a condition precedent to the execution of the contract, sufficient security, by bond or otherwise, in an amount equal to at least 100 percent of the contract price ... conditioned upon the payment by the contractors and subcontractors for all labor performed or furnished....
Fastrack relies upon Judge Coffey's original ruling that RSA–12 G:30, II (Supp.2000) exempted the PDA from this bond requirement. It argues that because Judge Abramson's subsequent ruling stated that it "does not conflict with [Judge Coffey's] prior findings," Judge Coffey's ruling that the bond was not statutory stands as the law of the case. We disagree with this reading of Judge Abramson's order. Judge Abramson's order expressly found that "Advatex was required [under RSA 447:16 ] to obtain a payment bond securing payment for all labor, equipment, materials, and services it subcontracted for," and that "the payment bond at issue is a statutory payment bond voluntarily issued to comply with the provisions of RSA 447:16." Judge Abramson thus disagreed with and overruled Judge Coffey's prior order. See Redlon Co. v. Corporation, 91 N.H. 502, 505, 23 A.2d 370 (1941) (). Although Fastrack asks this court to find that the bond was not a statutory bond, it has presented no argument in its brief explaining why Judge Coffey was correct to rule that RSA 12–G:30, II (Supp.2000) would exempt the PDA from the bond requirement. As such, we decline to reconsider Judge's Abramson's ruling that the bond was statutorily required. See Daboul v. Town of Hampton, 124 N.H. 307, 309, 471 A.2d 1148 (1983) ().
Fastrack next argues that the terms of the bond itself waived the statutory notice requirements set forth in RSA 447:17 and :18. RSA 447:17 reads:
The defendants' bond contained a different procedure for notice, requiring that the claimant provide written notice of its claim to the owner and contractor within ninety days of completion, and notice to the surety, contractor, and owner within thirty days if no response is received for the claim. Significantly, the bond itself did not require any filing with the superior court. Judge Abramson found that compliance with the terms of the bond was sufficient to provide notice because the defendants waived the statutory terms via the inclusion of different terms in the bond.
Fastrack's argument relies upon Petition of Keyser , 97 N.H. 404, 89 A.2d 917 (1952). Keyser, like the present case, involved a statutorily required bond issued by a contractor. Id. at 404, 410, 89 A.2d 917. At the time, the statute required the claimant to furnish notice to the principal and surety "within ninety days after the claimant ceases to perform labor or furnish material, and that a petition shall be filed within one year." Id. at 409, 89 A.2d 917. The bond itself, however, provided persons with "direct contacts" to the principal "a direct right of action against the Principal and Surety." Id. at 408, 89 A.2d 917. The court held that the bond's language created a common-law right of action for the claimant against the principal and surety, and waived the statutory notice procedure to which they would otherwise be entitled. Id. at 407, 409, 89 A.2d 917. Thus, a claimant with direct contacts could sue the principal and surety without providing any statutory...
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Fastrack Crushing Servs. v. Abatement Int'l/Advatex Assocs.
...149 N.H. 661827 A.2d 1019FASTRACK CRUSHING SERVICES, ABATEMENT INTERNATIONAL/ADVATEX ASSOCIATES, INC. & a. No. 2002-265. Supreme Court of New Hampshire. Argued: May 14, 2003. Opinion Issued: July 2, 2003. 149 N.H. 662 Hall, Morse, Anderson, Miller & Spinella, P.C., of Concord (Frank P. Spin......