The Cordish nightmare wrought upon Louisville by Jerry Abramson isn’t over. Don’t worry, your night sweats aren’t going to end any time soon.
It seems that Cordish is keen on taking millions upon millions of our tax dollars without a care in the world. When it comes to paying contractors, however, it’s not so keen on parting with its cash or keep up its end of the deal.
Take a look at this lawsuit Cordish just lost to Badgett Constructors, LLC:
Gary Darnell, a Cordish representative, contacted Dale Lemmel, Badgett’s project supervisor, in February of 2007 and engaged Badgett to do demolition and build-out work at Fourth Street Live. Badgett was to work on the tenant spaces that were to become the Roc Bar and the Mex Bar. Darnell advised Lemmel that the work had to be done in time to allow both businesses to open for Derby, 2007.
Over the next several months, Badgett submitted invoices totaling $374,972.46 for its work at Fourth Street Live. These invoices were not paid when submitted. In June or early July of 2007, ECI requested that Badgett resubmit an invoice for $265,940.00 because that was all that Cordish would pay at that time. Badgett did so, believe that ECI would pay the full amount eventually. The resubmitted invoice stated that it was for “Fourth Street Live, Remodel — Roc Bar/Mex Bar, 2nd draw”. In mid-August, ECI sent Badgett a check for $265,940.00. The check had an attachment which contained the words “payment in full/2nd dr”. At trial, Badgett acknowledged receipt of the payment. Badgett alleges that the Defendants owe an additional $109,032.46 for work Badgett performed under the contract. The Defendants allege that the contract between them and Badgett was “not to exceed” contract and the amount sought by Badgett exceeds the limit set in the alleged contract. The Defendants further claim that the payment accepted by Badgett constitutes an accord and satisfaction. Badgett denies ever being advised that there was a “not to exceed” amount in place for its work. There is no written contract memorializing the terms agreed upon by the parties.
The Court finds that this indicates that Badgett was willing to work under that arrangement but it does not prove that Badgett agreed to do the earlier work for Cordish and ECI on that basis. The Court finds that the contract was a “time and materials” contract.
Cordish and ECI also allege that the $265,940.00 payment operates as an accord and satisfaction. When they sent Badgett a check for $265,940.00, the attached check stub contained the following: “Payment in full/2nd dr”. They maintain that when Badgett cashed the check for $265,940.00 without protest, that operated as an accord and satisfaction.
The Court finds that the “Payment in full/2nd dr” language is not sufficient to put Badgett on notice that the check was a final payment on all claims. On its face, the memo is ambiguous. It does not clearly indicate that the second draw was the final draw. The Court finds that Cordish has not demonstrated that there was an accord and satisfaction of any claim by Badgett for the work in question.
The Court finds that Badgett is entitled to judgment on its claims.
Click here (Warning: PDF Link) to read the entire judgment.
Badgett will receive 12% interest on the $109,032.46 judgment until paid in full by Cordish.