wilcox constr v. lr provencher

Vermont ‘Superion Court
leg 05/19/21
A eee nit

VERMONT SUPERIOR COURT CIVIL DIVISION
Addison Unit Case No. 48-3-19 Ancv
7 Mahady Court

Middlebury VT 05753
802-388-7741
www. vermontjudiciary.org

Wilcox Construction, LLC vs. LR Provencher Earthworks, Inc. et al.

ENTRY REGARDING MOTION

Title: Plaintiff’s Motion for Summary Judgment on Counts I and III (Motion: 1)

Filer: John M Mazzuchi
Filed Date: | December 09, 2020

The motion is GRANTED IN PART and DENIED IN PART.

Count I: Breach of Contract

Plaintiff alleges that Defendants are responsible for all amounts on unpaid invoices in the
otal tamount of $169,962.53 and relies on the “Credit Application” of 2004 as a contract
establishing full liability. Defendants dispute that the Credit Application includes terms of sale,
and alleges that the stone Plaintiff sold was unfit for some applications.

The Credit Application is a contract that relates to terms of billing only, including such
terms as interest rate and attorneys’ fees upon collection, but does not define the terms of any of
the sales of products between the parties. Defendants do not dispute that stone was purchased as
reflected on Plaintiff’s invoices. They allege that some of the product sold was defective but only
some and not all (Provencher Affidavit, J 27').

Thus, there are sufficient undisputed facts to grant the motion as to liability in general,
but not as to the specific amount due. There are insufficient facts to determine the terms of any
of the sales of the product and the resulting amount of liability as to each such sale.

Accordingly, summary judgment is granted to Plaintiff as to liability, but not as to the
specific amount claimed, which will require an evidentiary hearing.

! Plaintiff argues that Defendants seek to set off claims arising from pre-2014 fully paid sales against amounts due
under the subsequent unpaid invoices, which may be the case to some extent, but the facts also indicate disputes
as to the terms of sale of some of the items in the invoices on which this claim is based. Further factual
development is needed,

Entry Regarding Motion Page 1 of 2
48-3-19 Ancv Wilcox Construction, LLC vs. LR Provencher Earthwr
Count III: Prompt Pay Act

Plaintiff claims remedies under the Prompt Pay Act on the grounds that the stone
Earthworks purchased from Wilcox was necessary to perform work on real property. The court
adopts the analysis of the application of the Prompt Pay Act set forth in Defendant’s
memorandum in opposition. While stone sold is likely to be used in projects on real property in
general, that is not a sufficient basis for the seller of stone to be entitled to recovery under the
Prompt Pay Act as a contractor or subcontractor “in connection with a construction contract.”
There is no evidence that Wilcox was ever involved in providing stone to Earthworks for a
particular identified construction contract on a specific property.

Accordingly, Plaintiff's motion for summary judgment on Count III is denied. By the
other ruling issued this day on Motion #4, summary judgment is granted to Defendants.

Electronically signed pursuant to V.R.E.F. 9(d) on May 14, 2021 at 9:09 AM.

Mary ifs Teachout
Superigy Court Judge

Entry Regarding Motion Page 2 of 2
48-3-19 Ancv Wilcox Construction, LLC vs. LR Provencher Earthwr