Companies ask judge to dismiss Preston Board of Education lawsuit

By Kyla Asbury | Feb 24, 2017

KINGWOOD – Two of the defendants in a lawsuit filed by the Preston County Board of Education for breach of contract are asking the circuit judge to dismiss the lawsuit.

Great American Insurance Company and Capitol Valley Contracting filed their motions to dismiss on Feb. 21 in Preston Circuit Court.

Capitol claims that the board has failed to allege facts supporting the satisfaction of a condition precedent and that it gave written notice and an opportunity to cure any alleged nonconforming work within one year following substantial completion.

While the court must assume that facts alleged are true, it is not proper to assume that the plaintiff can prove any facts that it has not alleged, according to the suit.

“The contract between the Preston County Board of Education and Capitol Valley Contracting Inc.,” Capitol’s motion to dismiss states. “In this case imposes an obligation on the plaintiff to give Capitol Valley written notice of alleged nonconforming work and an opportunity to cure within one year following substantial completion.”

In Great American’s motion to dismiss, it claims that the claims against it arise out of the claim against Capitol for allegedly failing to perform under the Phase I Construction Contract.

“Plaintiff has no right to recover anything under the performance bond issued by GAIC absent it being successful on its claim against Capitol Valley,” the motion states.

GAIC claims that Capitol was the site contractor for the location of what would eventually become West Preston Middle School and, because the site would have to be prepared before the school could be constructed, the completion of Capitol’s work under its contract was a factual condition precedent for the construction of the school.

“Capitol Valley completed its portion of the work and turned over the site to the plaintiff, who in turn brought in a subsequent contractor to build the school on the site prepared by Capitol Valley (Phase II),” the motion states. “The scope of Capitol Valley’s contract was limited to site preparation (Phase I) and its work was substantially complete by December 2014.”

Capitol and GAIC claim the board waited too long to file suit and did not follow the procedures laid out in its contract.

On Jan. 10, the BOE sued Capitol, GAIC, Architectural Vision Group Ltd. and Lewis Land Professional Inc. in Preston County Circuit Court.

The BOE claims the defendants failure to properly perform their obligations in accordance with a contract.

On Feb. 8, 2011, the school board entered into a contract with AVG and Capitol for the construction of improvements and additions to West Preston Middle School and Valley Elementary School.

As a result of the defendants' negligence, the plaintiff has been damaged financially in an amount in excess of the jurisdictional limits of the court, according to the suit.

The plaintiff claims the defendants failed to complete the project in accordance with the its drawings, plans and specifications, refused to correct the deficient work and improperly denied the plaintiff's claim.

The Preston County Board of Education is seeking trial by jury, judgment, jointly and severally, in an amount to be determined by jury, costs of court and all other proper relief. It is represented by Marc A. Monteleone and Kenneth E. Wenn Jr. of Bowles Rice LLP.

Capitol is represented by Johnson W. Gabhart of Johnstone & Gabhart

GAIC is represented by Robert H. Sweeney Jr. and Charlotte H. Norris of Jenkins Fenstermaker.

Preston Circuit Court Case number 17-c-9

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Organizations in this Story

Bowles Rice LLP Jenkins Fenstermaker Johnstone & Gabhart LLP

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