IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHWESTERN DIVISION URBAN METROPOLITAN DEVELOPMENT,

LLC, Plaintiff, v. JOPLIN R-VIII SCHOOL DISTRICT, Serve: C.J. Huff, Superintendent 3901 E. 32nd St. Joplin, MO, 64804 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 12-3187-CV-SW-

COMPLAINT COMES NOW Plaintiff Urban Metropolitan Development, LLC (hereinafter Plaintiff) by and through its attorneys of record, Baird, Lightner, Millsap & Harpool, P.C. and for its causes of action against Joplin R-VIII School District (hereinafter Defendant) hereby states and alleges as follows: PARTIES, JURISDICTION AND VENUE 1. Plaintiff, Urban Metropolitan Development, LLC, is a Georgia limited liability

company in good standing, having its principal place of business located in Atlanta, Georgia. 2. Defendant, Joplin R-VIII School District, is a governmental body created by

statute and organized under the laws of the state of Missouri. Defendant may be served through its Superintendent, C.J. Huff, 3901 E. 32nd Street, Joplin, Missouri 64804. 3. This Court has jurisdiction of this civil action by the terms and provisions of 28

U.S.C. 1332(a)(1), because complete diversity of citizenship exists between the parties and the

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matter in controversy exceeds the sum or value of Seventy-Five Thousand Dollars ($75,000.00), exclusive of interest and costs. 4. Venue properly lies in this Court under the provisions of 28 U.S.C. 1391(a) and

(b)(2) because a substantial part of the events or omissions giving rise to the claim occurred in this judicial district. COUNT I BREACH OF CONTRACT BY DEFENDANT 5. On or about September 15, 2011 the Defendant published a invitation to bid

(Invitation to Bid) on a certain project for the demolition of Joplin High School and the disposal of all demolition materials (Joplin High Demolition Project), a true and accurate copy of which is attached hereto and incorporated herein as Exhibit 1. 6. On or September 30, 2011 Plaintiff submitted a bid to the Defendant for the

Joplin High Demolition Project which was accepted by the Defendant on or about October 29, 2011. 7. On November 29, 2011, Plaintiff and Defendant entered into a contract regarding

the Joplin High Demolition Project which incorporated all terms and conditions set forth in the Invitation to Bid (Joplin High School Demolition Contract), a true and correct copy of which is attached hereto and incorporated herein as Exhibit 2. 8. Under the Joplin High School Demolition Contract, Plaintiff agreed to perform

certain demolition work and disposal of demolition materials work as specified in the Scope of Work Section of the Invitation to Bid. In exchange, Defendant agreed to pay Plaintiff One Hundred Fifty-Five Thousand Three Hundred Twenty-Two Dollars ($155,322.00) in semimonthly payments as set forth in Section 16.1 of the Invitation to Bid.

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9.

On February 3, 2012, Plaintiff submitted a payment invoice to Defendant in the

amount Fifty-Five Thousand Seven Hundred Sixty-Five Dollars ($55,765.00) (February 3rd Invoice) for work completed under the Joplin High School Demolition Contract, a true and correct copy of which is attached hereto and incorporated herein as Exhibit 3. 10. On March 3, 2012, Plaintiff submitted a payment invoice in the amount Forty-

Eight Thousand Six Hundred Twenty-Nine Dollars and Fifty Cents ($48,629.50) (March 3rd Invoice) for work completed under the Joplin High School Demolition Contract to the Defendant, a true and correct copy of which is attached hereto and incorporated herein as Exhibit 4. 11. Plaintiff has performed all conditions precedent required of it under the Joplin

High School Demolition Contract for payment on the February 3rd Invoice and March 3rd Invoice. 12. Therefore, Defendant is required to pay to Plaintiff an amount of One Hundred

Four Thousand Three Hundred Four Dollars and Fifty Cents ($104,394.50) for such aforementioned invoices. 13. Defendant has breached the Joplin High School Demolition Contract by failing to

pay Plaintiff the One Hundred Four Thousand Three Hundred Four Dollars and Fifty Cents ($104,394.50) owed under such contract. 14. 15. Defendants failure to pay Plaintiff as stated above was in bad faith. Pursuant to Section 16.2 of the Invitation to Bid, Plaintiff is entitled to interest at

a rate of one and one-half percent (1 %) per month for late payments. 16. Pursuant to Missouris Public Works Prompt Payment Act, Section 34.057(1),

RSMo, Plaintiff is entitled to interest at a rate of one and one-half percent (1 %) per month for

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the non-payment of amounts due to it on the unpaid progress payments plus costs and reasonable attorneys fees. 17. As a direct and proximate consequence and result of Defendants breach of

contract for its failure to make progress payments as required under the Joplin High School Demolition Contract and under Missouri law, Plaintiff has been damaged in the amount of One Hundred Four Thousand Three Hundred Four Dollars and Fifty Cents ($104,394.50), in addition to interest and its reasonable costs and attorneys fees. WHEREFORE, based on the foregoing, as to Count I of this Complaint, Plaintiff requests that the Court enter judgment in its favor and against Defendant, for damages in such sum as will adequately compensate it for actual damages sustained, interest at a rate of one and one-half percent per month including pre- and post-Judgment interest, its attorneys fees and costs, and for such other and further legal and equitable relief as the Court deems proper. COUNT II BREACH OF CONTRACT BY DEFENDANT 18. Plaintiff incorporates each and every allegation set forth in paragraphs 1 through

16, above, as if specifically set forth herein. 19. The conditions of the Joplin High Demolition Project substantially changed after

the execution of the Joplin High School Demolition Contract necessitating extra work by Plaintiff not contemplated by Plaintiff and Defendant at the time the Joplin High Demolition Contract was executed. 20. Specifically, after the execution of the Joplin High Demolition Contract, Joplin

High Schools basement and tunnel areas flooded in areas up to twenty-one feet. 21. On or about January 30, 2012 to February 8, 2012, Defendant instructed Plaintiff

upon written order to reclaim and dispose of the water in the basement and tunnel areas of Joplin

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High School. Approval was to be obtained from the City of Joplin and Missouri Department of National Resources Springfield Office prior to commencement of demolition activities. 22. On or about January 30, 2012 to February 8, 2012, Plaintiff notified Defendant of

the extra work required by Defendant for the water reclamation and disposal, including processes and procedures required to comply with various environmental regulations. 23. At the insistence and written request of Defendant, on or around February 16,

2012 until March 2, 2012, Plaintiff reclaimed and disposed of approximately Two Million One Hundred Fourteen Thousand Four Hundred (2,114,400) gallons of water from the basement and tunnel areas of Joplin High School. 24. Plaintiff had no responsibility under the Joplin High School Demolition Contract

to reclaim and dispose of such water but did so upon Defendants written order. 25. The water reclamation and disposal services constitute extra work that is

independent of what is required of Plaintiff under the Joplin High School Demolition Contract. 26. The extra work required by Defendant to remove the water and ensure

environmental protection substantially increased the cost of Plaintiffs performance under the Joplin High Demolition Project in an amount of approximately Five Hundred Forty-Four Thousand Five Hundred Two Dollars and Eleven Cents ($544,542.11) and increased the time required for Plaintiff to complete the demolition of Joplin High School and the removal of the demolition materials. 27. Section 17.0 of the Invitation to Bid provides that Defendant shall make an

equitable adjustment to the Joplin High School Demolition Contract for changes to Plaintiffs work that results in an increase in Plaintiffs costs or time required for performance.

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28.

On or about March 14, 2012, Plaintiff submitted a request for an equitable

adjustment and modification of the Joplin High School Demolition Contract to account for the extra work required by Defendant. This letter, with attached invoice, dated March 14, 2012 is attached hereto and incorporated herein as Exhibit 3. 29. On or about March 19, 2012, Defendant denied Plaintiffs request for an equitable This letter dated March 19, 2012 is attached hereto and

adjustment for the extra work. incorporated herein as Exhibit 4. 30.

Defendants denial of the adjustment as required under Section 17.0 of the

Invitation to Bid constitutes a breach of the Joplin High School Demolition Contract by Defendant. 31. As a direct and proximate result of Defendants breach of contract for failure to

equitably adjust the Joplin High School Demolition Contract for the extra work required of Plaintiff, Plaintiff has been damaged in the amount of Five Hundred Forty-Four Thousand Five Hundred Two Dollars and Eleven Cents ($544,542.11), in addition to pre-judgment interest as of the date of the breach at the statutory rate, and attorneys fees expended in attempts to collect such debt. WHEREFORE, based on the foregoing, as to Count II of this Complaint Plaintiff prays for Judgment against Defendant for damages as stated above, along with costs, pre- and postJudgment interest, together with such other and further relief as the Court deems just and proper. COUNT III QUANTUM MERIT 32. Plaintiff incorporates each and every allegation set forth in paragraphs 1 through

30, above, as if specifically set forth herein.

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33.

At the insistence and written request of Defendant, Plaintiff reclaimed and

disposed of approximately Two Million One Hundred Fourteen Thousand Four Hundred (2,114,400) gallons of water from the basement and tunnel areas of Joplin High School. 34. Plaintiff had no responsibility under the Joplin High School Demolition Contract

to reclaim and dispose of such water but did so upon Defendants written order. 35. Defendant acknowledged and accepted such services without making full

payment and has, therefore, been unjustly enriched. 36. The reasonable value of services provided by Plaintiff for which Plaintiff has not

been paid is approximately Five Hundred Forty-Four Thousand Five Hundred Forty-Two Dollars and Eleven Cents ($544,542.11). WHEREFORE, based on the foregoing, as to Count III of this Complaint Plaintiff prays for Judgment against Defendant for damages as stated above, along with costs, pre- and postJudgment interest, together with such other and further relief as the Court deems just and proper. COUNT IV BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

37.

Plaintiff incorporates each and every allegation set forth in paragraphs 1 through

35, above, as if specifically set forth herein. 38. The Joplin High School Demolition Contract executed by Plaintiff and Defendant

on November 29, 2011 is governed by Missouri law. 39. dealing. Every Missouri contract carries an implied covenant of good faith and fair

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40.

The conditions of Joplin High School substantially changed after the execution of

the Joplin High School Demolition Contract necessitating extra work not contemplated by the Plaintiff and Defendant at the time the Joplin High School Demolition Contract was executed. 41. Specifically, Joplin High School suffered severe water conditions in the basement

and tunnel areas not contemplated the Plaintiff and Defendant at the time the Joplin High School Demolition Contract was executed. 42. At the insistence and written request of Defendant, Plaintiff reclaimed and

disposed of approximately Two Million One Hundred Fourteen Thousand Four Hundred (2,114,400) gallons of water from the basement and tunnel areas of Joplin High School. 43. Plaintiff had no responsibility under the Joplin High School Demolition Contract

to reclaim and dispose of such water but did so upon Defendants written order. 44. Defendant breached the implied covenant of good faith and fair dealing by

refusing to compensate Plaintiff for such extra work, including Plaintiffs increased costs and time required to perform the extra work not contemplated by Plaintiff and Defendant at the time the Joplin High Demolition Contract was executed. WHEREFORE, based on the foregoing, as to Count IV of this Complaint, Plaintiff requests that the Court enter judgment in its favor and against Defendant, for damages in such sum as will adequately compensate it for actual damages sustained, and for such other and further legal and equitable relief as the Court deems proper. JURY DEMAND Plaintiff hereby requests a trial by jury.

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Respectfully submitted, BAIRD, LIGHTNER, MILLSAP & HARPOOL, P.C.

By s/ M. Douglas Harpool M. DOUGLAS HARPOOL, Mo. Bar #28702 TERESA C. BAIRD, Mo. Bar. #55011 1901-C South Ventura Avenue Springfield, MO 65804 Telephone: (417) 887-0133 Facsimile: (417) 887-8740 dharpool@blmhpc.com tbaird@blmhpc.com Attorneys for Plaintiff

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