D. Warren, Justice.
action plaintiff SMR Inc. claims that defendant Cianbro Corp,
failed to pay SMR monies due under a subcontract providing
for SMR to install siding and membrane roofing as part of a
larger project in which Cianbro was the general contractor
for the demolition and renovation of a portion of the Sappi
papermill in Westbrook, Maine.
asserted claims for breach of contract, enforcement of a
mechanics lien, and violations of the Prompt Payment Act, 10
M.R.S. § 1114. Because SMR's claims are based on an
express contract, the court previously dismissed claims for
unjust enrichment and quantum meruit.
has denied SMR's claims and asserted a counterclaim
alleging that SMR defaulted on its contractual obligations
and seeking damages representing the amount it had to pay to
other subcontractors to complete the work after it terminated
the SMR subcontract.
jury-waived trial was held on June 17-21, 2019 and the
parties thereafter filed post-trial
court issues the following findings of fact and conclusions
early 2016 Cianbro entered into a contract with Sappi North
America to demolish and remodel a portion of the Sappi paper
mill in Westbrook. Specifically, the contract called for
Cianbro to demolish the existing roof over the portion of the
Sappi mill known as Building 37, leaving three existing walls
standing (referred to as the west, north, and east walls) and
an opening to the south.
the roof had been demolished, the east and west walls were to
be replaced by new steel structural frame walls. The north
wall was brick and was to remain in place. On the lower half
of the north wall a new structural steel wall was to be built
approximately fourteen feet out from the existing brick wall,
with a sloping shed roof running back to the brick wall.
new structural steel walls and the existing top half of the
north wall were to be covered with insulated steel siding.
The existing Building 37 floor (which covered a basement
area) was to be covered with a membrane roof.
Cianbro's contract with Sappi also called for the
building of a small addition (the "employee
entrance') at the south end of the east wall. Finally,
there was a smaller roof area over the East Wall that was
also to be covered with a membrane roof.
May 25, 2016 after considering various bids from other
potential subcontractors, Cianbro entered into a subcontract
with SMR under which SMR was to furnish and install the
insulated steel siding on the west, north, and east walls and
the employee entrance area and was to furnish and install a
membrane roof on the existing floor and on the area over the
east wall. The contract also contemplated some repair work on
the west wall roof.
SMR's bid was for a total of $ 500, 124.00, which was
almost $ 500, 000 below the next lowest bid. Before the SMR
subcontract was let, Rick Bartucca of Cianbro met with Steve
McBrady, the owner and chief executive of SMR at the site.
The demolition of the Building 37 roof was complete or almost
complete at that time, and Bartucca gave McBrady an
opportunity -now that the existing walls and the work to be
done were more visible - to verify that his bid prices were
still good. After a cursory look from the construction
trailer, McBrady said he was "all set."
Plaintiffs Ex. 1 consists of both the SMR subcontract and a
subcontract purchase order. Although the subcontract and
subcontract purchase order were signed on May 25, 2016, the
purchase order included language that the subcontract was to
be performed during the time period from May 10 to July 31,
2016. That time period had been overtaken by events.
Cianbro's work had been delayed for various reasons, and
at the time the subcontract and purchase order were signed,
both Cianbro and SMR understood that the time period set
forth in the purchase order was inoperative.
Cianbro's standard subcontract form, used in this case,
also potentially included a "Project Schedule" as
Exhibit D. The SMR subcontract, however, included a notation
that Exhibit D was "not used."
Before he even signed the subcontract, Steve McBrady had
informed Cianbro that SMR was committed to certain school
projects throughout the summer of 2016, and the parties
understood that the siding work would begin in the early
fall. This suited both parties because Cianbro
had experienced a number of problems and delays on the job at
that time and had not yet installed the structural steel
necessary for SMR to hang the insulated steel siding.
contends that Cianbro violated 10 M.R.S. §1114(2) by not
disclosing the due dates for Cianbro's receipt of
payments from Sappi before the contract was entered. However,
the subcontract documents expressly included the prime
contract, noted as available on request. Plaintiffs Ex. 1
§ 1.1 l(j). The prime contract specified when Cianbro
would be paid. Defendant's Ex. 2 § 10(b). This
constituted adequate disclosure. Moreover, in entering the
subcontract, SMR expressly represented and warranted that
prior to entering the subcontract it had carefully examined
the subcontract documents. Plaintiff s Ex. 1. § 2.2(a).
As the court found at trial, there was no violation of 10
M.R.S. § 1114(2).
Cianbro expected that SMR would order the siding so that it
could begin work after Labor Day and was surprised and
concerned when, in an email on September 6, 2016, Steve
McBrady asked what color siding should be ordered. This
indicated that the siding had not been ordered. In a
September 7 email Gary Parker of Cianbro responded, informed
McBrady the color that had been chosen by Sappi, and added,
"I need to know reality on lead time for the
McBrady answered by email that he would "call in color
and get you a time." Parker responded almost
immediately, asking McBrady if he knew the quantities he
needed and whether he would get a lead time that day.
Parker then sent an email on the following day, Thursday
September 8, stating:
Do you have a lead time for the siding and is the color that
the owner pick readily accessible? How many sq. ft. of siding
have you ordered? When will you have a crew here to start the
Roof and what do you need from use [sic] to get started? I
don't want your guys waiting around for us to do
something that I may have missed. Remember I think you should
be able to start end of next week.
Defendant's Ex. 15.
When McBrady did not respond, Parker sent a further email on
Monday September 12, attaching his earlier email and stating:
Please respond to these Question right away It is important.
McBrady responded by email on Thursday September 15,
apologizing for the delay in responding and stating that he
had been waiting for the siding manufacturer (Kingspan) to
give him an accurate estimate. His email went on to state:
The wall panels ship from Florida and have an estimated
arrival date of 10/15/16. The roof panels ship from
California and have an estimated arrival date of 10/25/16.
These dates assume that there are no issues in trucking ....
They will be able to firm up the delivery dates as they get
Defendant's Ex. 17.
Cianbro responded the same day with an email asking McBrady
how long it would take him to complete the work and a second
email asking, "How many Sq, feet of siding have you
ordered?" and when McBrady could start on the west wall
roof repair, 17. McBrady did not respond to Cianbro's
inquiry as to how long it would take SMR to complete the
the quantity issue, McBrady responded (email on September 15
at 3:44 pm), "We have @15000 sq ft of wall panel and
3000 sq ft of roof panel," adding that he would stop by
Monday to go over the roofing with Gary Parker.
These email exchanges are quoted in some detail because,
contrary to McBrady's testimony at trial, his responses
to Cianbro represented that he had ordered the siding and
roofing panels and that those were estimated to arrive on
October 15 and 25, 2016. Although McBrady testified he had
been providing a hypothetical lead time, his email is not
worded as a hypothetical. McBrady's listing of quantities
in response to the question "How many Sq. feet of siding
have you ordered?" (emphasis added) also
demonstrates that he intended Cianbro to think that he had
placed the order.
fact, McBrady did not place the order for siding until a