27-CV-16-11387
Filed in Fourth Judicial District Court 3/28/2017 11:04:31 AM
Hennepin County, MN
STATE OF MINNESOTA
DISTRICT COURT
COUNTY OF HENNEPIN
FOURTH JUDICIAL DISTRICT
Case Type: Contract
Big-D Construction Midwest, LLC,
Court File No.: 27-CV-16-11387
Plaintiff and Third-Party
The Honorable Laurie J. Miller
Plaintiff, V.
Golden Villas, LLC,
Defendant, V.
JL Schwieters Construction, Inc.,
Third-Party Defendant, Counterclaimant, and Third-Party Plaintiff, and
Minnesota Building Pros, Inc. Third-Party Defendant, V.
Chicago Flameproof & Wood Specialties, Corp, Additional Third-Party Defendant.
AMENDED ANSWER TO PLAINTIFF'S SECOND AMENDED THIRD-PARTY
COMPLAINT, COUNTERCLAIM AGAINST BIG-D CONSTRUCTION MIDWEST, LLC, CROSS-CLAIM AGAINST MINNESOTA BUILDING PROS, INC.AND THIRDPARTY COMPLAINT AGAINST CHICAGO FLAMEPROOF & WOOD SPECIALTIES, CORP.
27-CV-16-11387
pji^^j j^,
Judicial District Court 3/28/2017 11:04:31 AM
Hennepin County, WIN
ANSWER
Third-Party Defendant JL Schwieters Construction, Inc. ("JL") by and for its Answer to
the Third-Party Complaint of Big-D Construction Midwest, LLC ("Big-D"), states and alleges as follows:
1.
Unless otherwise admitted or qualified herein JL denies each andevery allegation
in Big-D's Second Amended Third-Party Complaint.
2.
JL admits the allegations contained inParagraph 7 of the Second Amended Third-
Party Complaint.
3.
JL is without information or knowledge sufficient to either admit or deny the
allegations contained in Paragraphs 1, 2, 3, 4, 5, 6, 8, 9, 15, 23, and 32 ofthe Second Amended Third-Party Complaint and accordingly denies the same and puts Big-D to its strictest burden of proof.
4.
With respect to the allegations contained in Paragraphs 10, 11, and 20 of the
Second Amended Third-Party Complaint, JL states that the Subcontract speaks for itself and to
the extent the allegations mischaracterize the terms of the Subcontract JL denies the same and puts Big-D to its strictest burden of proof.
5.
JL denies the allegations contained in Paragraphs 13, 17, 19, 22, 33, and 34 of
the Second Amended Third-Party Complaint and puts Big-D to its strictest burden ofproof.
6.
With respect to the allegations contained in Paragraph 12 ofthe Second Amended
Third-Party Complaint, JL admits that it prepared a submittal indicating the type of materials to
be provided to the Project. JL affirmatively alleges that it ordered the materials indicated in the submittal from Chicago Flameproof & Wood Speciahies Corp ("Chicago Flameproof) and that
Chicago Flameproof delivered to JL, without notice, materials that Chicago Flameproof contends
27-CV-16-11387
Judicial District Court 3/28/2017 11:04:31 AM
Hennepin County, MN
are in all material respects equivalent to the materials indicated in the submittal. JL denies the remaining allegations contained in Paragraph 12 and puts Big-D to its strictest burden of proof. 7.
With respect to the allegations contained in Paragraphs 14, 16, 18, and 21 of the
Second Amended Third-Party Complaint, JL states that the allegations constitute legal conclusions to which no response is required, but to the extent that a response is required, JL denies the same and puts Big-D to its strictest burden of proof.
8.
With respect to the allegations contained in Paragraph 16 of the Second Amended
Complaint, JL states that the allegations constitute legal conclusions to which no response is required, but to the extent a response is required, JL denies the same and puts Big-D to its strictest burden of proof.
In addition, JL affirmatively alleges that it did not breach the
Subcontract because it provided, in response to a request from Big-D, a cure satisfactory to BigD, to any allegations that the work was defective or not compliant with contract documents,
laws, codes, or regulations.
Specifically, JL provided to Big-D a plan for the removal and
replacement of the lumber as requested by Big-D, pursuant to which the lumber would have been removed and replaced within approximately ten weeks.
9.
With respect to the allegations contained in Paragraphs 24-31 of the Second
Amended Third-Party Complaint, JL states that the allegations are solely against Minnesota Building Pros and therefore no response from JL is required but to the extent a response is
required, JL denies the same and puts Big-D to its strictest burden of proof AFFIRMATIVE DEFENSES
10.
Big-D's Second Amended Third-Party Complaint fails to state a claim upon
which relief may be granted.
27-CV-16-1 387
Judicial District Court 3/28/2017 11:04;31 AM
Hennepin County, MN
11.
Big-D's Second Amended Third-Party Complaint is barred by the doctrine of
12.
Big-D's Second Amended Third-Party Complaint is barred by the doctrine of
waiver.
estoppel. 13.
Big-D's Second Amended Third-Party Complaint is barred by its own negligence
and unclean hands.
14.
Big-D's Second Amended Third-Party Complaint is barred due to the negligence
of others that JL has no control over.
15.
Big-D's Second Amended Third-Party Complaint is barred by its own breaches of
contract.
16.
Big-D's Second Amended Third-Party Complaint is barred by the terms of the
contract between Big-D and JL.
17.
Big-D's Second Amended Third-Party Complaint is barred by Big-D's failure to
mitigate its damages, if any. 18.
Big-D's Second Amended Third-Party Complaint fails because Big-D has not
sustainedany damages or cannot demonstrate that JL caused the damages. 19.
Big-D's Second Amended Third-Party Complaint fails because JL proposed
adequate cures to any alleged default and was never provided the opportunity to institute the cures.
20.
Big-D's Second Amended Third-Party Complaint fails because Big-D has failed
to satisfy conditions precedent in the Subcontract.
21.
As a separate and alternate defense to Big-D's Second Amended Third-Party
Complaint, JL raises all affirmative defenses listed in Rule 8.03 of the Minnesota Rules of Civil
38
pjigj
Fourth Judicial District Court 3/28/2017 11:04:31 AM
Hennepin County, MN
Procedure for purposes of preserving such affirmative defenses. Further, JL does not waive the
right to assert any and all such affirmative defenses not specifically raised herein. AMENDED COUNTERCLAIM. CROSS-CLAIM. AND TfflRD-PARTY COMPLAINT
Third-Party Defendant JL Schwieters Construction, Inc. ("JL"), as and for its Counterclaim against Plaintiff Big-D Construction Midwest, LLC ("Big-D"), its Cross-Claim against Minnesota Building Pros, Inc. ("MBP") and its Third-Party Complaint against Chicago
Flameproof & Wood Specialties Corp, hereby states and alleges as follows: THE PARTIES
1.
Plaintiff Big-D is an Alaska limited liability company registered to do business in
Minnesota with a registered address of 2345 Rice Street, Suite 230, Roseville, MN 55113. Big-
D was the general contractor on the HELLO Project that is the subject of the underlying lawsuit. 2.
Defendant Golden Villas is a Minnesota limited liability company with a
registered address of 1907 Wayzata Blvd, Suite 250, Wayzata, MN 55391 and is the owner of
the property located at 9201 Golden Valley Road, Golden Valley, MN where the HELLO Project that is the subject of the underlying lawsuit is located (the "Property"). 3.
Third-Party Defendant and Third-Party Plaintiff JL is a Minnesota corporation
with a registered address of 13925 Fenway Boulevard North, Hugo, MN 55038. JL was the framing subcontractor on the HELLO Project that is the subject of the underling lawsuit. 4.
Third-Party Defendant MBP is a Minnesota corporation, with its principal place
of business located at 21901 Industrial Blvd Rogers, MN 55374. MBP supplied windows for the HELLO Project.
5.
Third-Party Defendant Chicago Flameproof & Wood Specialties Corp ("Chicago
Flameproof) is an Illinois corporation with its principal place of business at 1200 Lake Street,
27-CV-16-11387
Judicial District Court 3/28/2017 11:04:31 AlVI
Hennepin County, MN
Montgomery, IL 60538.
Chicago Flameproof is a seller, merchant, and distributor of
commercial building materials and a manufacturer of treated lumber products. Through its website and retail facility, Chicago Flameproof advertises and sells materials across the United States, including Minnesota. LABOR AND MATERIALS PROVIDED TO THE PROPERTY A. The Subcontract
6.
On or around November 18, 2015 JL entered into a contract with Big-D, wherein
JL was hired to provide labor and materials for framing work at the Property (the "Subcontract"). A true and correct copy of the Subcontract is attached hereto as Exhibit A. 7.
Pursuant to Section 3.6 of the Subcontract, JL agreed to indemnify and save
harmless Big-D and Golden Villas from: "any and all claims, demands, causes of action in law or
in equity, damages, penalties, costs, expenses, actual attorneys' fees, experts' fees, consultants' fees, judgments, losses or liabilities, of every kind and nature whatsoever arising out of or in any way connected or incidental to, the performance of the work under this Subcontract ("Claims")." 8.
Section 3.6 of the Subcontract limits JL's duty to defend Big-D to the following
situations:
"[JL] agree[s], at your own costs, expense and risk to defend [Big-D and Golden Villas] against any claims as defined in this provision that may be brought or instituted by third persons, including but not limited to, government agencies or your employees. In the event You fail to do so, we, in addition to any other legal rights we may have, may defend the same and all costs and expenses incidental to the defense thereof, including, but not limited to, actual attorneys' fees and expert costs, or settlement of any such claim or liability, or payment of any judgment, cost, attorneys' fees, expert fees, and expenses incidental thereto, or said amount as we in our discretion deem necessary to defend and resolve such claims or liability, such costs shall be deducted from the amount due to You and withheld by us." (emphasis added).
27-CV 16 11387
Fourth Judicial District Court 3/28/2017 11:04:31 AlVI
Hennepin County, MN
B, The Materials for the Project
9.
As part of the Subcontract, JL was required to procure and install fire-retardant-
treated wood for use in constructing the Project's exterior walls. 10.
Section 2303.2 of the International Building Code ("IBC"), which Minnesota has
adopted, defines "fire-retardant-treated wood" (hereinafter "FRT lumber") as "any wood product which, when impregnated with chemicals by a pressure process or other means during manufacture, shall have, when tested in accordance with ASTM E84 or UL 723, a listed flame
spread index of 25 or less and show no evidence of significant progressive combustion when the test is continued for an additional 20-minute period. Additionally, the flame shall not progress more than lO'/a feet (3200 mm) beyond the centerline of the burners at any time during the test" (italics in original).
11.
The IBC also contains detailed labeling standards for FRT lumber, requiring that
eight specific pieces of information be stamped on each piece of FRT lumber. 12.
Between December 22, 2015 and March 17, 2016, JL ordered FRT lumber from
Chicago Flameproof for use-by JL Construction on the Project.
13.
When JL placed its orders for FRT lumber, D-Blaze® FRT lumber was the only
FRT lumber available for purchase on Chicago Flameproofs website. 14.
Between January 19, 2016 and April 8, 2016, Chicago Flameproof, without notice
to JL, delivered to JL FlameTech™ lumber, a lumber product manufactured in-house by Chicago
Flameproof that Chicago Flameproof contends is in all material respects equivalent to D-Blaze® FRT lumber, instead of the D-Blaze® FRT lumber that had been advertised by Chicago Flameproof and ordered by JL.
27-CV-16-1 387
pj|g^
Fourth Judicial District Court 3/28/201711:04:31 AM
Hennepin County, MN
15.
At the time Chicago Flameproof delivered the FlameTech™ lumber to JL,
Chicago Flameproof concealed that the FlameTech™ lumber had not been tested or listed
pursuant to IBC requirements for FRT lumber. Because the FlameTech"'^'^ lumber delivered to JL was not tested, listed, or labeled in compliance with IBC requirements, it did not meet the IBC definition of FRT lumber and therefore was not FRT lumber.
16.
Chicago Flameproof failed to notify JL of Chicago Flameproof s unilateral
decision to ship FlameTech™ lumber instead of D-Blaze® FRT lumber, the only FRT lumber that Chicago Flameproof represented as being in stock and available for purchase, and which JL consequently ordered from Chicago Flameproof through a materials buying co-op. 17.
The bill of lading accompanying each delivery of lumber from Chicago
Flameproofto JL prominently identifiedthe product as FRT lumber. Chicago Flameprooffailed to notify JL that the lumber it delivered to JL had not been tested, listed, or labeled in accordance with IBC requirements for FRT lumber, and that as a result, the lumber delivered was not actually FRT lumber. C. JL's work on the Project
18.
On March 14, 2016 JL commenced work on the Property pursuant to the term of
the Subcontract.
19.
In early June 2016, JL received notice from Big-D that the lumber installed in at
Project did not comply with applicable state and city building codes because the lumber was not stamped to evidence that it was IBC tested and certified. At the time, the exterior walls were substantially constructed on the Project.
20.
In June 2016, following its receipt of notice that the lumber was not properly
stamped, JL immediately notified Chicago Flameproof that the lumber delivered to JL was
8
27-CV-16-1 387
Judicial District Court 3/28/2017 11:04:31 AM
Hennepin County, MN
defective because it did not meet IBC requirements. Chicago Flameproof admitted that it had
shipped its in-house brand, FlameTech^'^ lumber rather than the D-Blaze® FRT lumber advertised on its website and ordered by JL.
Chicago Flameproof further stated that the
FlameTech™ lumber was in all material respects equivalent to D-Blaze® FRT lumber, that FlameTech™ lumber met IBC requirements for FRT lumber, that it was in the process of
completing testing necessary to obtain IBC certification, but that the FlameTech™ lumber had not yet been certified by IBC or stamped as IBC compliant. 21.
From the receipt of the first notice, JL worked diligently to mitigate damages. At
the direction of ESG, JL attempted to procure the IBC required testing results and tried to
complete the IBC listing process so that the FlameTech"'"'^ lumber could be retroactively stamped per IBC labeling requirements. JL also proposed additional potential curative measures to the
building owner, Big-D, architects, and city officials such as using additional flame retardant
spray on the FlameTech''"'^ lumberalready installedon the Project. 22.
In early July 2016, Chicago Flameproof notified JL that the testing of its
FlameTech^M lumber product was completed and Chicago Flameproof was prepared to begin re-
stamping the lumber with proper certifications. On or about July 19, 2016, however, ESG notified JL that in addition to testing already completed, an additional strength test would be required in order to satisfy IBC requirements. 23.
Following this additional delay in the testing, listing, and re-stamping process, the
architect. Golden Villas, and Big-D directed JL to remove all FlameTech^'^ lumber from the
Project and to replace it with IBC-certified FRT lumber. 24.
Acting under protest and in response to a Notice to Cure, JL agreed to remove and
replace the lumber that was at issue. More specifically, in response to a request from Big-D, JL
?7 r*\/ 16 11'^87
Filed in Fourth Judicial District Court 3/28/2Q17 11:04:31 AM
Hennepin County, MN
outlined a plan for the removal and replacement of the lumber pursuant to which the lumber
would have been removed and replaced within approximately ten weeks. JL's proposal cured the alleged default as it complied with Big-D's terms for cure in all respects.
25.
Although JL agreed to cure any alleged breach in the Subcontract by removing
and replacing the FlameTech™ lumber, on July 28, 2016, the owner of the Hello Project terminated Big-D.
26.
The termination letter cited to Big-D's failure to supply proper materials and its
violation of the building code as the basis for termination. A new general contractor was hired
and is currently in the process of removing FlameTech™ lumber from the Hello Project and replacing it with FRT lumber that complies with the IBC
27.
Up until Big-D's termination from the Project, JL had supplied all labor and
materials required by its Subcontract with Big-D and had agreed to cure any alleged defects in the installation of the FlameTech™ lumber.
28.
JL has requested to be paid the balance owed to it for the work it provided to the
Property; however, Big-D has failed/refused to pay JL in accordance with the Subcontract.
29.
On or about July 29, 2016, Big-D filed the instant lawsuit against Golden Villas
for wrongful termination. Golden Villas filed a counter claim against Big-D seeking damages allegedly caused by the use of FlameTechi^"^ lumber on the Project. Big-D in turn filed a ThirdParty Complaint against JL Construction.
Chicago Flameproof has been duly notified of the
claim against JL Construction and has been advised that it may defend the action on JL
Construction's behalf, and has not taken on the defense of the action. A true and correct copy of the Second Amended Third-Party Complaint is attached hereto as Exhibit B.
10
27-CV-16-11387
Judicial District Court 3/28/2017 11:04:31 AM
Hennepin County, MN
30.
On or about August 31, 2016, JL advised Big-D and Golden Villas that additional
testing confirmed that the FlameTech™ lumber met IBC requirements and had been listed as
required by the IBC, and that as a result, removal and replacement should not be required. 31.
Since first receiving notice on or about June 7, 2016 that the lumber supplied by
Chicago Flameproof was not yet IBC-certified or listed, and not properly stamped per IBC
requirements, and continuing through the present, JL has incurred significant expenses attempting to cure defaults alleged in default notices related to JL Construction's installation of FlameTech"'"'^ lumber on the Project, including but not limited to costs and expenses incurred to: (1) perform independent testing to try to establish that FlameTech™ lumber installed on the Project meets IBC testing and certification standards and complies with applicable state and city building codes; and (2) attempt to re-stamp previously installed FlameTech™ lumber to evidence that the FlameTech™ lumber meets IBC testing and certification standards.
32.
In addition, JL will be potentially liable for costs and expenses related to the
removal and replacement of lumber on the Project, as well as property damage to existing elements of the Project and materials installed near the FlameTech™ lumber that was removed
from the Projects.
The damaged property included the exterior walls, wiring, and Tjrvek
insulation on the Project.
33.
In addition to incurring significant costs attempting to cure defaults alleged in
default notices related to the installation of FlameTech"'^'^ lumber on the Project, JL has also
incurred and continues to incur attorneys' fees, expert fees, liquidated damages, loss of manpower, wages, business interruption costs, and other related costs and expenses as a result of Chicago Flameproofs election to supply its own non-IBC compliant lumber product in lieu of
the D-Blaze® FRT lumber JL actually ordered. JL could also potentially face liquidated damages
11
27 CV 16 11387
Fourth Judicial District Court 3/28/2017 11:04:31 AM
Hennepin County, IVIN
related to delays in the completion of the Project, as well as other fees, costs, and potential indemnification obligations on the Project.
34.
In addition to the defective lumber supplied by CFP, Golden Villas has also
alleged MBP supplied windows that were not in compliance with the specifications and contract documents.
35.
These windows were installed into the framing work that JL provided pursuant to
its Subcontract with Big-D.
36.
The windows supplied by MBP and installed into the JL framing work on the
HELLO Project caused damage to JL's work because the defective windows had to be ripped out of JL's work and replaced with the proper classification of window. 37.
JL has expressly denied any liability for any damages alleged by Big-D or Golden
Villas. CAUSES OF ACTION COUNTI
BREACH OF CONTRACT (BIG-D)
38.
JL restates and realleges all preceding paragraphs of the Counterclaim, Cross-
Claim, and Third-Party Complaint as though set forth herein at length. 39.
Pursuant to the terms of the Subcontract, Big-D agreed to compensate JL for the
work it performed. 40.
Up until Big-D was terminated from the Project, JL had fully performed all of the
work required under the Subcontract (including curing, or agreeing to cure, all alleged defaults) and has invoiced Big-D for amounts due and owing thereunder.
4L
Despite JL's repeated demands, Big-D has unjustifiably failed, refused, and/or
neglected to pay JL amounts due and owing under the Subcontract for the work JL performed. 12
27-CV-16-11387
pj|g^
pourth Judicial District Court 3/28/2017 11:04:31 AM
Hennepin County, MN
42.
As a direct and proximate result of Big-D's breach of the Subcontract, JL has
been harmed in an amount in excess of $1,311,787.70, together with interest, attorneys fees,
costs and disbursements, the exact amount to be proven at trial, for the labor, skill, and/or materials provided at the requestof Big-D. COUNT II
ACCOUNT STATED (BIG-D)
43.
JL restates and realleges all preceding paragraphs of the Counterclaim, Cross-
Claim, and Third-Party Complaint as though setforth herein at length.
44.
JL sent billing statements and/or demands for payment to Big-D indicating the
amounts still due and owing for the labor, skill, and/or materials provided to the Property.
45.
Big-D neither objected to such billing statements nor objected to orquestioned the
charges stated thereon.
46.
Big-D retained JL's billing statements for more than a reasonable period of time
without raising an objection with respect to the form and substance thereof or the charges therein.
47.
An account has been stated between JL and Big-D.
48.
Therefore, JL is entitled to a judgment against Big-D, in an amount in excess of
$1,311,787.70, together with interest, attorneys' fees, costs and disbursements, the exact amount
to be proven at trial, for the labor, skill, and/or materials provided atthe request ofBig-D. COUNT III
DECLARATORY JUDGMENT (BIG-D)
49.
JL restates and realleges all preceding paragraphs of the Counterclaim, Cross-
Claim andThird-Party Complaint as though set forth herein at length.
13
27-CV-16-11387
Judicial District Court 3/28/2017 11:04:31 AM
Hennepin County, MN
50.
This Court has jurisdiction to issue a declaratory judgment pursuant to the
Minnesota Uniform Declaratory Judgments Act, Minnesota Statutes §§ 555.01 to 555.16. 51.
Big-D alleges that JL has breached the Subcontract because it has failed to defend
Big-D against claims asserted by the Owner. 52.
Section 3.6 of the Subcontract, the provision that sets forth JL's obligations with
respect to defense and indemnity, does not require JL to defend Big-D against claims asserted by Owner.
53.
Accordingly, JL is entitled to declaratory relief pursuant to Minnesota Statute
Chapter 555 determining that JL does not owe any contractual obligation to defend Big-D from any claim asserted by Golden Villas and has not breached the Subcontract by failing to undertake the defense of Big-D. COUNT IV
CONTRIBUTION AND INDEMNIFICATION (CfflCAGO FLAMEPROOF)
54.
JL restates and realleges all preceding paragraphs of the Counterclaim, Cross-
Claim, and Third-Party Complaint as though set forth herein at length.
55.
JL has expressly denied any liability for any damages alleged by Big-D or Golden
56.
If, however, Big-D and/or Golden Villas demonstrates that they have suffered any
Villas.
damages as alleged in the Amended Complaint and/or Second Amended Third-Party Complaint, to the extent such damages were not caused by Golden Villas itself, or another party under its
direction and control, such damages were caused by the negligence, breach of contract, breach of warranties, fraudulent misrepresentations, negligent misrepresentations, acts, omissions or other fault of Chicago Flameproof.
14
27-CV-16-11387
Judicial District Court 3/28/2017 11:04:31 AM
Hennepin County, MN
57.
If JL is found liable to Big-D and/or Golden Villas for any amount of damages as
a result of the FlameTech^"^ lumber, JL is entitled to contribution and indemnity from Chicago
Flameproof for any amounts or any apportioned share of fault which may be awarded to Big-D and/or Golden Villas upon the Second Amended Third-Party Complaint. COUNT V
CONTIRBUTION AND INDEMNIFICATION (MBP)
58.
JL restates and realleges all preceding paragraphs of the Counterclaim, Cross-
Claim and Third-Party Complaint as though set forth herein at length. 59.
JL has expressly denied any liability for any damages alleged by Big-D or Golden
60.
If, however, Big-D and/or Golden Villas demonstrates that they have suffered any
Villas.
damages as alleged in the Amended Complaint and/or Second Amended Third-Party Complaint, to the extent such damages were not caused by Golden Villas itself, or another party under its direction and control, such damages were caused by the negligence, breach of contract, breach of
warranties, fraudulent misrepresentations, negligent misrepresentations, acts, omissions or other fault of MBP.
61.
If JL is found liable to Big-D and/or Golden Villas for any amount of damages as
a result of the defective windows supplied by MBP, JL is entitled to contribution and indemnity
from MBP for any amounts or any apportioned share of fault which may be awarded to Big-D and/or Golden Villas upon the Second Amended Third-Party Complaint COUNT VI
NEGLIGENCE (MBP)
62.
JL restates and realleges all preceding paragraphs of the Counterclaim, Cross-
Claim and Third-Party Complaint as though set forth herein at length.
15
27-CV-16-11387
Judicial District Court 3/28/2017 11:04:31 AlVI
Hennepin County, MN
63.
MBP owed JL a duty to ensure that the windows it supplied for installation into
JL's framing work on the HELLO Project were the windows specified in its contract with Big-D. 64.
MBP failed to provide JL with the proper windows for installation into JL's
framing work on the HELLO Project and instead provided windows with the incorrect Sound Transmission Class.
65.
MBP's failure to provide the proper windows for installation into JL's framing
work on the HELLO Project was a breach of MBP's duty of care to provide proper windows. 66.
As a direct and proximate result of MBP's failure to provide proper windows for
installation into JL's framing work, the defective windows had to be removed from JL's framing
work, which caused significant damage to JL's work and caused JL damages in an amount in excess of $50,000 together with attorneys' fees, costs, and disbursements in an amount to be proven at trial. WHEREFORE, JL respectfully requests judgment by this Court as follows: 1.
Dismiss Plaintiff Big-D's Second Amended Third-Party Complaint in its entirety
and with prejudice.
2.
For judgment in favor of JL and against Big-D under Counts I and II in an amount
not less than $1,311,787.70 to be proven at trial, together with interest, costs, disbursements, attorneys' fees, and all other associated relief, including the reformation of the Subcontract and
payment of reasonable profit and overhead as demanded in such Counts. 3.
For judgment in favor of JL and against Big-D under Count III declaring that JL
does not owe Big-D a contractual duty of defense under the terms of the Subcontract. 4.
In the event that JL is found liable to Big-D and/or Golden Villas for any
damages, JL requests judgment in favor of JL and against Chicago Flameproof under Count IV
16
27-CV-16-11387
Filed in Fourth Judicial District Court 3/28/2017 11:04:31 AM
Hennepin County, MN
for contribution and indemnity for all damages that are apportioned against JL and in favor of Big-D and/or Golden Villas.
5.
In the event that JL is found liable to Big-D and/or Golden Villas for any
damages, JL requests judgment in favor of JL and against MBP under Count V for contribution
and indemnity for all the damages that are apportioned against JL and in favor of Big-D and/or Golden Villas.
6.
For judgment in favor of JL and against MBP under Count VI in an amount not
less than $50,000 to be proven at trial, together with interest, costs, disbursements, attorneys' fees, and all other associated relief.
5.
For such other relief as the Court may deem to be just, fair and equitable under
the circumstances of this case.
LEONARD, O'BRIEN, SPENCER, GALE & SAYRE, LTD.
/s/ Patrick J. Lindmark
Dated: March 28, 2017
By: Ernest F. Peake, #212453 James M. Jorissen, #262833 Stacey L. Drentlaw #285201 Patrick J. Lindmark, #388064 100 South Fifth Street, Suite 2500
Minneapolis, Mirmesota 55402 Telephone: (612) 332-1030
[email protected] [email protected] [email protected]
[email protected] ATTORNEYS FOR JL SCHWIETERS
CONSTRUCTION, INC.
17
27-CV-16-11387
Filed in Fourtli Judicial District Court 3/28/2017 11:04:31 AM
Hennepin County. MN
ACKNOWLEDGMENT
The Defendants, by their attorneys, acknowledge that sanctions may be imposed under Minn. Stat. §549.211. LEONARD, O'BRIEN, SPENCER, GALE & SAYRE, LTD.
/s/ Patrick J. Lindmark
Dated: March 28, 2017
By: Ernest F. Peake, #212453 James M. Jorissen, #262833
Stacey L. Drentlaw #285201 Patrick J. Lindmark, #388064 100 South Fifth Street, Suite 2500 Minneapolis, Minnesota 55402 Telephone: (612) 332-1030
[email protected] [email protected] [email protected]
plindmark@,losgs.com ATTORNEYS FOR JL SCHWIETERS
CONSTRUCTION, INC.
18