Axenics, Inc. v. Turner Construction Co.
164 N.H. 659
| N.H. | 2013Background
- Axenics subcontracted Turner to install process pipe for the West Lebanon biotech facility; original contract price was $1,992,506.
- Delays and changes occurred; mechanical completion target was December 2004, with Axenics' last day on site June 2, 2005.
- Subcontract allowed Turner-directed changes, change orders, and a specific process for billing extra work with written proposals and five-day deadlines.
- Axenics sought eight change orders approved by Turner and Stryker; a ninth change order for $435,929 was not paid.
- Axenics alleged Turner breached the subcontract and that Stryker aided or caused unjust enrichment; CPA claims were also alleged.
- Trial court awarded Axenics restitution of $1,080,000 for unjust enrichment against both Turner and Stryker, and found no CPA violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Abandonment vs. breach | Axenics argues abandonment occurred through conduct; breach separate still present. | Defendants contend no abandonment and no breach; contract remained in effect. | Abandonment not proven; breach to be determined on remand. |
| Unjust enrichment against Turner | Turner's coordination failures caused extra work and costs outside the contract. | Change orders and contract controls precluded unjust enrichment; subject matter within contract. | Turner not liable for unjust enrichment; within-contract change-order framework governs. |
| Unjust enrichment against Stryker | Stryker benefited from extra work and should restitution be paid when privity exists via owner-contractor chain. | Stryker paid to Turner; no direct obligation to Axenics; no unconscionable transfer. | No unjust enrichment against Stryker; benefit not unconscionably retained. |
| Damages for unjust enrichment and Rule 408 | Damages should reflect value of extra work; internal compromise memo should be admissible. | Damages tainted by inadmissible compromise communications under Rule 408. | Rule 408 error; internal compromise memo excluded; damages reconsidered on remand. |
| CPA claim viability | Defendants’ conduct constitutes unfair or deceptive acts; rascality threshold met. | Conduct did not reach rascality; businesslike disputes and cooperation occurred. | No CPA violation; rascality not shown. |
Key Cases Cited
- J.A. Jones Constr. v. Lehrer McGovern Bovis, 89 P.3d 1009 (Nev. 2004) (abandonment requires mutual consent; mixed law/fact question)
- Fru-Con/Fluor Daniel v. Corrigan Brothers, 154 S.W.3d 330 (Mo. Ct. App. 2004) (many changes do not prove abandonment when contract contemplates changes)
- Clarendon America v. General Sec. Indem., 124 Cal. Rptr. 3d 1 (Cal. Ct. App. 2011) (abandonment shown by inconsistent conduct; contract rights preserved)
- EMF General Contracting Corp. v. Bisbee, 774 N.Y.S.2d 39 (N.Y. App. Div. 2004) (abandonment analysis in construction context)
- R.J. Berke & Co. v. J.P. Griffin, Inc., 116 N.H.760 (N.H. 1976) (quantum meruit as restitutionary remedy after material breach)
- Puritan Mills, Inc. v. Pickering Construction Co., 262 S.E.2d 586 (Ga. Ct. App. 1979) (contract clearly sets scope; rock removal not within contract)
- Great Plains Equipment v. N.W. Pipeline, 979 P.2d 627 (Idaho 1999) (owner generally not liable to subcontractor unless owner consents to pay)