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Travelers Casualty & Surety Co. of America v. Cummins Mid-South, LLC

Court of Appeals of Arkansas, Division I

April 15, 2015

TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA, AND BOYD CORLEY CONSTRUCTION, LLC d/b/a TYCOR CONSTRUCTION, LLC a/k/a TYCOR INDUSTRIES, LLC, APPELLANTS
v.
CUMMINS MID-SOUTH, LLC, APPELLEE

Page 309

[Copyrighted Material Omitted]

Page 310

APPEAL FROM THE OUACHITA COUNTY CIRCUIT COURT. NO. CV-2012-112-6. HONORABLE DAVID F. GUTHRIE, JUDGE.

Newland & Associates, PLLC, by: Joel Hoover and Breanna Trombley, for appellants.

Raymond Harrill and Robert Tschiemer, for appellee.

BART F. VIRDEN, Judge. GRUBER and GLOVER, JJ., agree.

OPINION

Page 311

BART F. VIRDEN, Judge

Travelers Casualty and Surety Company of America (Travelers) and Tycor Industries LLC (Tycor) appeal the circuit court's order for Tycor to pay Cummins Mid-South LLC (Cummins) $59,115.14 plus costs, interest, and attorney's fees on the grounds that (1) the language of the lien release was ambiguous, (2) Cummins did not waive its right to recover on the bond, and (3) Tycor was unjustly enriched. This appeal follows.

On appeal, Tycor asserts that the terms of the release were unambiguous, and that Cummins waived its right to payment under the bond by signing the release. Additionally, Tycor asserts that Cummins is not entitled to recover under the doctrine of unjust enrichment because the existence of a contract bars such recovery. We agree, and we reverse the circuit court's order.

I. Facts

Tycor, a general contractor, bonded by Travelers, subcontracted with ARC Electrical (ARC) for installation and electrical work on the Armed Forces Reserve Center project (project). ARC purchased a generator from Cummins. ARC began to have problems performing, and Tycor fired ARC before the job was completed. On August 3, 2011, John Virden[1] of Tycor contacted Nick Grandison, a project manager at Cummins, to ascertain if any money was owed for supplies relating to the project. Initially, Grandison told Virden that Cummins was paid in full. However, on September 20, 2011, Cummins contacted Tycor and explained that it had made a mistake and their records showed that Tycor actually owed $59,115.14 for the generator. It was undisputed that Tycor had assumed the liabilities of ARC regarding this job. Tycor took no action. In November 2011, Tycor received written notice that a $2,748.16 bill from a September 2, 2011 service call on the generator had gone into collection. The invoice showed the date of the service call, the parts and labor charges, plus various charges related to the repair of the part. On December 1, 2011, Tycor paid the bill with a check dated December 1, 2011, and wrote " Paid in Full-RE: Armed Forces Res. Ctr." Tycor prepared the release, which was dated December 13, 2011. It was entitled " SUBCONTRACTOR/MATERIALMAN UNCONDITIONAL WAIVER AND RELEASE UPON FINAL PAYMENT," and was signed by Cummins's chief financial officer, Mark Whitehead. It contained the statement " covers the full and final payment of the contract amount for labor, services and equipment, or material furnished on the job of Armed Forces Reserve Center." Whitehead testified he handled unpaid accounts as a part of his

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job, regularly signing lien waivers and that he signed the release drafted by Tycor. He explained that he did not contact Tycor to discuss the release. Whitehead testified that he knew what a final lien waiver was, and he knew that if he signed it, Cummins was not going to get paid any more on that project. He ...


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