West Virginia Record

Saturday, January 18, 2020

Supreme Court reverses Kaufman's decision to dismiss Sanitary Board suit

By Kyla Asbury | Apr 12, 2016


CHARLESTON – The West Virginia Supreme Court of Appeals has reversed Kanawha Circuit Judge Tod J. Kaufman’s dismissal of a lawsuit filed against the Charleston Sanitary Board.

J.F. Allen Corporation was seeking reversal of the Kanawha Circuit Court’s order, contending that it alleged sufficient facts in its amended complaint, that if considered as true, would entitle it to relief.

The Supreme Court ruled that J.F. Allen set forth a claim upon which relief could be granted, according to the April 7 opinion.

Justice Allen Loughry authored the majority opinion.

The Supreme Court remanded the case for further proceedings consistent with its opinion.

On Dec. 13, 2011, the sanitary board and J.F. Allen entered into a written agreement for construction work and the contract price was $5,160,621.75 but was “subject to additions and deductions by change orders and quantities actually performed.”

The contract required substantial completion of the project by Jan. 2, 2013, and final completion by Feb. 1, 2013.

Construction was not completed until Aug. 15, 2013, and it was undisputed that six change orders and quantity adjustments were made during the project that increased the contract price by the amount of $394,977 and, after final payment was made under the contract, J.F. Allen submitted a written request seeking additional compensation from the sanitary board for extra, non-contractual work that it maintains was required by the board and for increased costs that resulted from numerous delays and disruptions encountered during the project.

The sanitary board refused the request and J.F. Allen filed a complaint in Kanawha Circuit Court on June 30, 2014, asserting breach of contract and unjust enrichment claims against the board.

On Dec. 2, 2014, a hearing was held and then on Jan. 5, 2015, the circuit court granted the sanitary board’s motion to dismiss. J.F. then appealed.

The circuit court failed to acknowledge the fact that J.F. Allen’s breach of contract claim was not based solely upon the board’s alleged failure to provide additional compensation for damages incurred as a result of mismarked or unmarked underground facilities on the construction plans.

“Additionally, the complaint alleged that the parties modified other provisions in the contract pertaining to paving and restoration of homeowners’ properties through a subsequent oral agreement,” the opinion stated.

Whether J.F. Allen did, in fact, satisfy the requirements of the contract, and whether the board did, in fact, breach its obligations under the contract or whether elements of the contract were waived or amended by the parties, are questions of fact that should only be resolved after the parties have had an opportunity to engage in discovery, according to the opinion.

J.F. Allen Corporation was represented by Charles M. Johnstone II and Johnson W. Gabhart of Johnstone & Gabhart LLP.

The Sanitary Board was represented by David Allen Barnette and Vivian H. Basdekis of Jackson Kelly PLLC.

W.Va. Supreme Court case number: 15-0089

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Organizations in this Story

Johnstone & Gabhart LLPWest Virginia Supreme Court of AppealsJackson Kelly PLLCCity of Charleston