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Anil Construction Inc. v. McCollum

Court of Appeals of Tennessee, Jackson

July 15, 2015

ANIL CONSTRUCTION INC.
v.
PATRICK D. MCCOLLUM, ET AL.

Session Date June 10, 2015

Appeal from the Chancery Court for Madison County, No. 67465 William B. Acree, Judge

Adam M. Nahmias, Memphis, Tennessee, for the appellants, Anil Construction, Inc.

Jon A. York, Jackson, Tennessee, for the appellee, Patrick David McCollum.

J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J., and Kenny Armstrong, J., joined.

OPINION

J. STEVEN STAFFORD, JUDGE

Background

This is the second appeal in this case involving an alleged breach of a construction contract. Accordingly, we take many of the facts from our prior Opinion, Anil Construction, Inc. v. Patrick D. McCollum, Individually and d/b/a Pats Custom Cabinets, No. W2013-01447-COA-R3-CV, 2014 WL 3928726 (Tenn. Ct. App. Aug. 7, 2014) (" Anil Construction I ").

Ambarish Keshani is in the business of owning and operating movie theaters. Id. at *2. Mr. Keshani uses his own construction company, Plaintiff/Appellant Anil Construction, Inc. ("Anil Construction") to build the movie theaters. Id. Anil Construction operates as a general contractor and enters into contracts with subcontractors to complete various aspects of his theaters. See id

As stated in Anil Construction I,

Mr. Keshani, through Anil Construction, began construction on a new movie theater in Jackson, Tennessee, the Cinema Planet 10 ("Cinema 10"). On April 13, 2010, Anil Construction executed a contract with subcontractor Defendant/Appellee Patrick McCollum, d/b/a Pat's Custom Cabinets ("Mr. McCollum"), for Mr. McCollum to build all of the cabinetry for the Cinema 10. The contract detailed the seven specific areas in Cinema 10 where Mr. McCollum was to install cabinets. In return, the parties agreed, Anil Construction would pay Mr. McCollum a total contract price of $44, 650-half ($22, 325) upon execution of the contract, and the other half 15 days after completion of the cabinet project. The contract describes the cabinet work as a "turnkey" job, that is, both parties anticipated that the subcontractor would complete the entire project. The contract also stated that the job needed to be completed by the scheduled opening of the theater in June 2010, and that time was of the essence:
Opening of [the] movie theatre in June, 2010 (Tentative date being June 11 but could move one or two weeks) is critical to Anil Construction Inc[.] and Pat's Cabinet understands that clearly and agrees to accommodate Anil Construction as needed.... Time is of an essence.

Construction of the movie theater did not go as planned. Id. Cinema 10 did not open in June 2010 as stated in the parties' contract. Id. The opening was delayed until October 1, 2010, for reasons that the parties dispute. Additionally, the cabinetry was not completed, even at the delayed October 1, 2010, opening of Cinema 10. Regarding this delay,

[t]he record contains various email communications between the parties regarding the delay. In many of them, Mr. Keshani is urging Mr. McCollum to complete the job; in others, Mr. McCollum is pressing Mr. Keshani to pay him the balance owed on the contract. Mr. Keshani asserted that the delays in completion were caused by Mr. McCollum. Mr. McCollum in turn maintained that the delays were caused by factors outside of his control. Mr. McCollum would later testify at trial that the cabinetry work was installed and in use by October 12, 2010.
In November 2010, Mr. Keshani sent emails to Mr. McCollum accusing him of taking items from the Cinema 10 that he was not authorized to take.

Id. at *2-*3. In Mr. Keshani's email of November 16, 2010, he included a list of fifteen allegedly defective items ("Items 1 through 15") that he asked Mr. McCollum to correct or complete. As provided in Mr. Keshani's email to Mr. McCollum, Items 1 through 15 include:

(1)Bar back wall shacks [sic] when swing door is used. Still does.
(2)Formica in concession/bar area coming loose at spots.
(3)Bar top flips still not corrected properly to sit on top of the bar counter and now hinges are bent.
(4)Bar Top flips are not square with bar. Still are not.
(5) Glass shelf does not support the weight of the liquor bottles. Still exist. You are saying to put wood on each side of shelf, while your man Jimmy told me, when has was at Cinema that, it would not help. He thought the solution was to put support in the middle of each shelf. Which one of you is correct? We just want it to be able to hold the liquor bottles, at the same look good and be practical in use without hindrance.
(6) Liquor Cabinet is not level/plum this is evident when looking at the mirror on the right side of the cabinet. This may be because the back bar top is sagging on the left. Still exist.
(7)White piece of wood is exposed below Formica – close to the center. Still exist.
(8) Foot rail in front of the bar sits off the floor in couple places. [S]till exist.
(9) Formica – many places have damaged edges due to filing – poor work. Still exist.
(10) Waves are evident in the front of concession Formica and poor joints. Jimmy put putty in joints but does not match with color and in time it will disappear. [N]eeds proper solution.
(11) TV poles are mounted now, but the left one is not sitting level and tight on top of counter and sways. This is risky and creates liability.
(12) Still have issues with many cabinet locks.
(13) Trash can's [sic] enclosures sway door does not swing properly. Sticks due to clearance.
(14) Bar front does not have rope light groove at bottom. Your offering to hang rope light does not solve the issue. There should be groove at bottom, just like at top.
(15) Concession still dont [sic] have toe kick in front.

Mr. Keshani stated that he would not pay Mr. McCollum until these items were complete. Additionally, Mr. Keshani

forbade Mr. McCollum from going onto the theater property without arranging it in advance in writing with Mr. Keshani personally. Mr. Keshani told Mr. McCollum that he did not consider the job to be complete until all of the listed items were done, and he made it clear that he would ...

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