Koch v. Construction Technology, Inc.

• Decision Date: 20 May 1996
• Parties: Mark KOCH, d/b/a Commercial Painting Company, Inc., Plaintiff-Appellant, v. CONSTRUCTION TECHNOLOGY, INC., and Fidelity and Deposit Company of Maryland, Defendants-Appellees.
• Court: Tennessee Supreme Court

Page 68

924 S.W.2d 68

Mark KOCH, d/b/a Commercial Painting Company, Inc. Plaintiff-Appellant, v. CONSTRUCTION TECHNOLOGY, INC., and Fidelity and Deposit Company of Maryland, Defendants-Appellees.

Supreme Court of Tennessee,

at Jackson.

May 20, 1996.

Michael I. Less, Scott A. Frick, Less, Getz & Lipman, Memphis, for Plaintiff-Appellant.

Gerald B. Kirksey, Brentwood, Patricia C. Kussman, New Orleans, LA, American Subcontractors Assn. of Middle Tennessee, American Subcontractors Assn. of Western Tennessee, Amicus Curiae.

David A. Velander, Craig M. Beard, Novick, Velander & Anderson, Memphis, for Defendants-Appellees.

OPINION

DROWOTA, Justice.

This case involves a contract dispute between Mark Koch (d/b/a Commercial Painting Company, Inc.) and Construction Technology, Inc., (CTI), the former a painting subcontractor and the latter the general contractor on a construction project owned by the Memphis Housing Authority (MHA). The issues for our determination are as follows: (1) whether the Court of Appeals erred in construing the "pay when paid" clause in the subcontract as a condition precedent, thereby making Koch's right to payment dependent upon CTI's receipt of payment from MHA; and (2) whether the Court of Appeals erred in construing the bond given by CTI to Koch as a statutory bond rather than a common law bond, which had the effect of precluding Koch's right of action against Fidelity and Deposit Company of Maryland (FDCM), the surety on the bond. For the following reasons, we hold that the Court of Appeals erred on both issues; therefore, we reverse the judgment of that court and remand the cause for further proceedings.

FACTS AND PROCEDURAL HISTORY

On March 17, 1988, CTI and the MHA entered into a contract in which CTI agreed to make improvements to the Dixie Homes Housing Development in Memphis. On March 30, 1988, CTI subcontracted the painting portion of the project to Koch; CTI also provided a performance and payment bond to him through FDCM. The subcontract included a "payment" clause, which provides in pertinent part, that:

Partial payments subject to all applicable provisions of the Contract shall be made when and as payments are received by the Contractor. The Subcontractor may be required as a condition precedent to any payment to furnish evidence satisfactory to the Contractor that all payrolls, material bills, and other indebtedness applicable to the work have been paid.

Koch completed all work required by the contract on July 31, 1989; and he was paid $148,110.96 for this work by CTI. However, because the amount of actual work performed exceeded this total, and because CTI refused to make any additional payments, Koch brought an action against it for breach of contract in the Shelby County Circuit Court. In its answer, CTI cited the payment clause as an affirmative defense, alleging that "CTI has not been paid in full by MHA and, therefore, is not obligated to pay plaintiff since payment to CTI by MHA is a condition precedent to CTI's obligation to pay plaintiff."

Koch's complaint also included a claim against FDCM based on the performance and payment bond. In its answer, FDCM alleged that Koch's claim was barred by the six month limitations period applicable to statutory bonds, and that Koch had failed to comply with the notice provisions applicable to such bonds.

After a bench trial, the trial court found, in pertinent part, as follows:

This contract [between Koch and CTI] provided that the work performed by Plaintiff would be paid when defendant CTI received payment from MHA.

. . . . .

Based on the sign-off sheets numbers and the actual observations and measurements of the project made by the plaintiff and/or his employees as it relates to the painting work, the Court finds that MHA has paid CTI $28,307.22 for work actually performed by plaintiff in addition to the $148,110.96 already paid to plaintiff by CTI. This amount ... does not include any amounts for other work actually performed by plaintiff for which CTI has not been paid by MHA.

. . . . .

The plaintiff, Mark Koch d/b/a Commercial Painting Company, is awarded a judgment against the defendant CTI in the amount of $28,307.22.

Pursuant to motion made at the close of plaintiff's proof, the defendant FDCM is dismissed from this action with full prejudice.

. . . . .

This judgment may be amended by proper application upon final adjudication by a court of competent jurisdiction concerning the total quantities to be paid for by MHA to defendant CTI for painting work performed by plaintiff on the Dixie Homes project.

The last paragraph of the order was presumably included because CTI and MHA were then involved in litigation in another division of the Shelby County Circuit Court concerning MHA's liability to CTI for its work on the Dixie Homes project. Brown v. Bay Architectural Service, Inc., (Shelby Circuit Court, No. 30132). After the Brown litigation had concluded, Koch filed a motion requesting that the trial court increase the judgment to $39,650.14, arguing that the uncontroverted evidence presented at trial in the instant case showed this to be the total amount due him under the subcontract. CTI responded by filing a motion to reduce the judgment, in which it asserted that based upon the trial court's findings in Brown, Koch was due only $21,789.93 on the subcontract. The trial court denied both motions, and Koch appealed to the Court of Appeals.

The Court of Appeals affirmed the judgment. As to Koch's claim against CTI, the Court relied heavily upon Hussey v. Crass, 53 S.W. 986 (Tenn.Chan.App.1899), in determining that the "pay when paid" clause was a condition precedent to CTI's promise to pay. With respect to Koch's claim against FDCM, the court concluded that the bond executed by CTI to Koch was a statutory bond, and that Koch had neither brought its claim on the bond in a timely fashion, nor adhered to the notice provisions applicable to such bonds. We granted Koch's application for permission to appeal to address these issues.

I.

A. Construction of the Payment Clause

The first issue for our determination is whether the payment clause in the subcontract establishes MHA's payment to CTI as a condition precedent to CTI's obligation to pay Koch. Koch argues that the lower courts erred in so construing the clause. Although conceding that the Hussey court construed similar language as a conditional promise, he argues that an overwhelming majority of jurisdictions reject that position, and instead hold that such language establishes an absolute promise to pay on the part of the general contractor, but simply affords it a reasonable amount of time to make the payments. This majority position is sound public policy, Koch contends, because it is inequitable to make the subcontractor's right to payment dependent upon the owner's performance, which might not be forthcoming for any number of reasons out of the subcontractor's control. Because Hussey is at odds with the compelling majority position, Koch concludes, it should be overruled and the majority rule adopted in its place.

CTI responds that the law of other jurisdictions is of no consequence, and that Hussey--the only reported Tennessee decision addressing the issue--controls this case. Therefore, it concludes, the lower courts' construction of the payment clause should be affirmed.

Because the parties and the lower courts relied so heavily upon Hussey, we must first examine it in some detail. In that case, the general contractor, Crass, agreed with the owner to build a section of railroad; and Crass subcontracted the trestle work to Hussey. The subcontract provided that Hussey was to take out "estimates" on or about the 1st of each month, and that "90 per cent of said estimate was to be paid about the 15th of the following month, or as soon thereafter as the railroad company should pay or cause to be paid J.T. Crass therefor ..." Hussey, 53 S.W. at 986 (emphasis added). While the work was in progress, the railroad company became insolvent. Because of that development, Crass was only able to obtain 10% of the money due under his contract, despite extensive negotiating with the railroad company during its impending failure; and he paid his subcontractors on that pro rata basis.

Hussey then brought an action against Crass for breach of contract. The general contractor defended by asserting that the "pay when paid" clause was a condition precedent and that, furthermore, Hussey had agreed during the negotiations with the railroad that his claim was dependent upon Crass's obtaining a settlement with that entity. The chancellor ruled in Crass's favor, and Hussey appealed.

On appeal, the Chancery Court of Appeals affirmed the ruling. After setting forth the factual background, the court stated:

We think there can be no doubt that the understanding between the parties was that the money that Mr. Crass expected to pay to his subcontractors was to be realized from the railroad company, and that he would not be liable to the subcontractors, and complainant among the number, unless he could make collection from the railroad company. We think this is the true construction of the contract itself on its face, so far as concerns complainant's claim.

Hussey, 53 S.W. at 988.

After making that statement, the Court proceeded to quote extensively from correspondence between the parties during Crass's negotiations with the railroad: this lengthy recitation was undertaken for the purpose of illustrating Hussey's willingness to accept whatever settlement Crass could negotiate with the financially declining railroad. The Court concluded by stating:

From this correspondence, taken in connection with the statement in the contract that the complainant was to be paid when Crass was paid by the railroad company, we have no doubt that the expectation of both parties was that the liability of Mr. Crass depended upon his receiving money from the railroad company. The correspondence...