Hashimoto v. Cockett (In re Cockett), Case No. 13-01918
| Decision Date | 12 June 2015 |
| Docket Number | Adv. Pro. No. 14-90020,Case No. 13-01918 |
| Parties | In re: KEITH C. COCKETT, Debtor. DENNIS HASHIMOTO and JESSICA HASHIMOTO, Plaintiffs, v. KEITH C. COCKETT, Defendant. |
| Court | United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — District of Hawaii |
Date: Week of May 4, 2015
Time: 9:30 a.m.
Relates to Docket No. 1
Plaintiffs DENNIS HASHIMOTO and JESSICA HASHIMOTO ("Plaintiffs"), by and through their attorney, Tsugawa Biehl Lau & Muzzi, LLLC, hereby submit the following proposed findings of fact and conclusions of law, pursuant to the Court's directive at the conclusion of trial of the above-captioned adversary proceeding.
To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such.
1. On or about April 24, 2005, Plaintiffs DENNIS HASHIMOTO and JESSICA HASHIMOTO ("Plaintiffs") entered into an AIA Abbreviated Standard Form of Agreement Between Owner and Architect ("Architect's Agreement") with Keith Cockett & Associates, Inc. ("Cockett & Associates") for design and construction administration services with respect to the construction of a new home for Plaintiffs on a lot located at 1005 Hoa Street, Honolulu, Hawaii (the "Project").1
2. Debtor Keith C. Cockett ("Debtor") is the president and sole shareholder of Cockett & Associates.2 Debtor as the only employee andonly architect with Cockett & Associates and provided all services under the Architect's Agreement to Plaintiffs.3
3. Debtor drafted the Architect's Agreement.4
4. Pursuant to the Architect's Agreement, Debtor agreed to prepare certain design development documents and construction documents for the Project ("Project Plans"), including all required drawings and specifications setting forth in detail the requirements for the construction of the Project.5
5. Also, pursuant to the Architect's Agreement, Debtor had construction administration responsibilities. The relevant portions of the Architect's Agreement include the following:
§ 2.6.5 The Architect, as a representative of the Owner, shall visit the site at intervals appropriate to the stage of the Contractor's operations, or as otherwise agreed by the Owner and the Architect in Article 12, (1) to become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the Owner against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. . . . .
§ 2.6.6 The Architect shall report to the Owner known deviations from the Contractor Documents and from the most recent construction schedule submitted by the Contractor. . . .
§ 2.6.9.1 The Architect shall review and certify the amounts due the Contractor and shall issue certificates in such amounts.
§ 2.6.9.2 The Architect's certification for payment shall constitute a representation to the Owner, based on the Architect's evaluation of the Work as provided in Section 2.6.5 and on the data comprising the Contractor's Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents. . . . .
§ 2.6.10 The Architect shall have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable, the Architect shall have authority to require inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. . . . .
§ 2.6.13 The Architect shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Architect as provided in Sections 3.1.1 and 3.3.3, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are consistent with the intent of the Contract Documents.
(Emphases added.)
6. The relevant provisions of AIA Document A201 ("General Conditions") that were incorporated into the Architect's Agreement include § 4.2.1 (architect owners' representative); § 4.2.2 (); § 4.2.5 (); § 4.2.6 (); § 4.2.8 () and ¶ 12.3.1 ().6
7. On January 8, 2007, a building permit for the Project was applied for with the Department of Planning and Permitting ("DPP").7
8. On or about November 25, 2008, Plaintiffs engaged Evans Construction, LLC ("Evans Construction") as the general contractor for the Project (the "Construction Contract").8 David E. Evans ("DEE") was the principal member of Evans Construction and was directly involved with the Project.
9. During the negotiation of the contract price for the Construction Contract, Debtor dealt directly with Evans Construction regarding the quote and gave Evans Construction three chances to increase the quoted price (which Evans Construction did) because Debtor thought the original quote from Evans Construction was too low.9 Debtor eventually thought the revised quote was acceptable and directed Plaintiffs to accept.10
10. DEE only held a class "B" contractor's license effective December 22, 2006.11
11. DEE never held a class "A" contractor's license.12
12. At no time did DEE (or Debtor) hold the specialty classifications C-13 (electrical); C-21 (flooring); C-27 (landscaping); C-31b (stone masonry); C-37 (plumbing); C-37c (vacuum and air systems); or C-49 (swimming pool).13
13. Pursuant to the Construction Contract, DEE and Evans Construction obliged themselves to complete construction of the Project, including a new house, garage, lanai, swimming pool, cabana, outdoor wall, and other structures in accordance with the Project Plans.14
14. The Project Plans incorporated by reference the General Conditions.15
15. Pursuant to the Architect's Agreement, Debtor was at all times responsible for administering the Construction Contract, including visiting the Project site, observing construction, endeavoring to guard against defects and deficiencies, informing Plaintiffs of construction progress and any known deviations from the Project Plans, certifying applications for payment, preparing written change orders and construction changedirectives, and otherwise representing Plaintiffs during the course of construction.16
16. The Project Plans bear Debtor's stamp which provides that, "This work was prepared by me or under my supervision and construction of this project will be under my observation."17
17. The Project was the first time Debtor and Cockett & Associates had worked with DEE and Evans Construction.18 During the course of construction of the Project, Debtor and Cockett & Associates developed a business relationship with DEE and Evans Construction that was separate from the Debtor's work on the Project.19
18. At Debtor's suggestion, Debtor, Plaintiffs and DEE began having weekly meetings/dinner on Monday nights.20
19. Soon after commencement of the Project, Debtor and Evans began working on four other projects together.21
20. Debtor and DEE quickly developed a mutual admiration for each other, conversing at each Monday meeting/dinner about their pastathletic accomplishments22, which both display on their professional resumes.23
21. While many deviations from the Project Plans were not disclosed to Plaintiffs, on some occasions, Debtor and DEE would make suggestions or presentations to Plaintiffs at some of these Monday meetings regarding changes that Debtor and/or DEE wanted to make to various aspects of the Project.24 Neither Debtor nor DEE told Plaintiffs why these suggestions were being made or that they were made to make up for construction mistakes or deficiencies in the Project Plans.25
22. Plaintiffs, for the most part, wanted the Project built according to the Project Plans.26
23. Debtor began casually approving substitutions and changes from the Project Plans without Plaintiffs' approval or consent (and often without their knowledge), and without creating any change orders orconstruction change directives for the Project Plans or giving Plaintiffs any credits for eliminated or...
To continue reading
Request your trial