Fill and Sign the How to Defend Against Construction Contract Violation Claims Form

5.1 Breach Of Construction Contract Claim By Contractor - Counterclaim By Owner In this case, as you know, there are several claims made by the parties against each other, and there are a number of separate issues arising out of those claims. These issues will be submitted to you for your decision in the form of specific questions, known as Special Interrogatories, which will constitute the form of your verdict. The first claim for your consideration is the claim of the Plaintiff against the defendant to recover sums claimed by the Plaintiff to be due and unpaid under the contract between the parties for the construction of the buildings and related improvements. In the case of a construction contract, the building contractor is entitled to payment of the contract price upon proof of "substantial performance" of the work required by the contract. It is not necessary that the building contractor fully and completely perform every item specified in the plans and specifications, which are a part of the contract. The term "substantial performance" means that degree of performance of a contract that, while not equal to full and complete performance, is so nearly equivalent that it would be unreasonable to deny the contractor the payment agreed upon in the contract, subject, of course, to the owner's right to a reduction of the contract price measured by whatever damages the owner has suffered by reason of the contractor's failure to render full and complete performance. Accordingly, the first two questions you will be asked (as a part of the Special Interrogatories to be submitted to you) are:1. Do you find from a preponderance of the evidence that the Plaintiff substantially performed its obligations under the contract (and change orders) for the construction of the work? Answer Yes or No.2. If you answered Yes to Question One, what amount of money do you find to be due and unpaid by the Defendant to the Plaintiff underthe contract (without reduction in amount for any damages Defendant may have sustained due to lack of full and complete performance)?Answer in Dollars and Cents. Thus, even though you may find that the Plaintiff substantially performed the contract, you may also find that the Defendant nevertheless sustained damages because of a lack of full and complete performance on the part of the Plaintiff with respect to theconstruction work. So, in that regard, the third question you will be asked is as follows: 3. If you answered Yes to Question One, do you find from a preponderance of the evidence that the Defendant nevertheless sustained damages by reason of a failure on the part of the Plaintiff to fully and completely perform the construction work? Answer Yes or No.[If you find that the Plaintiff substantially performed the construction work, but also find that the Defendant sustained damages because of a failure of full and complete performance by the Plaintiff, you will then consider the issue of whether the Plaintiff, as it contends, was in fact "prevented" by the Defendant from fully and completely performing the work. On that issue you are instructed that, when two parties enter into a contract, each becomes obligated under the law to permit the other to perform the contract without interference; that is, each party must reasonably avoid any action that would effectively hinder, obstruct or prevent the other party from undertaking or completing whatever the other party agreed to do.So, in this case, if you find from a preponderance of the evidence that the Plaintiff (including the Plaintiff's subcontractors) was ready, willing and able to perform its contractual obligations but the Defendant did something that effectively hindered, obstructed and prevented the Plaintiff from so doing, then the Defendant cannot recover damages forthat failure because the Defendant, personally, became charged under the law with responsibility for it. On this issue you will be asked, as question number four, the following:4. If you answered Yes to Question Three, do you find from a preponderance of the evidence that the Defendant prevented the Plaintiff from fully and completely performing the constructionwork? Answer Yes or No.] In summary, up to this point, if you find that the Plaintiff substantially performed the construction work; and you also find that the Defendant nevertheless sustained damages from a lack of full and complete performance of that work[; and if you further find that the Plaintiff was not "prevented" by any action on the part of the Defendant from accomplishing full and complete performance of the work], you will then consider the next issue, namely, the amount of the damages sustained by the Defendant. Question number five, which you will be asked concerning that issue, is as follows:5. If you answered Yes to Question Three[, and No to Question Four], what amount of money do you find from a preponderance of the evidence to be due to the Defendant on account of such damages, measured by the reasonable cost in money necessary to supplyor correct the deficiencies in the Plaintiff's failure to fully and completely perform the contract work? Answer in Dollars and Cents.The questions discussed up to this point, of course, all deal with the issues arising out of the Plaintiff's claim against the Defendant for alleged breach of contract resulting from the Defendant's refusal to paythe balance claimed to be due under the construction agreement. However, the Defendant asserts a counterclaim against the Plaintiff contending that, in fact, the Plaintiff breached the contract by failing to substantially perform its obligations for the construction of the work. So, if you find against the Plaintiff on its claim (answering "No" to question number one), you will then consider question number six, as follows:6. If you answered No to Question One, do you find from a preponderance of the evidence that the Plaintiff failed to substantially perform its obligations under the contract (and change orders) for the construction of the work? Answer Yes or No.If you answer "Yes" to question number six - - finding in favor of the Defendant on the counterclaim - - you must then consider whether the defects or omissions in the Plaintiff's performance of the work are reasonably capable of being corrected without necessity of substantially tearing down and completely rebuilding the improvements. If so, the measure of the Defendant's damages under the law would be the amount you find from a preponderance of the evidence to be the reasonable cost of effecting those repairs or completing those omissions. On the other hand, if you find that the defects or omissions in the work are of such a magnitude that it would be necessary, in order to correct them, to substantially tear down or remove the existing improvements and rebuild them, then the cost of so doing would obviously exceed the value that would be added to the property, and carrying out such repairs or reconstruction would not be feasible from an economic standpoint. Thus, under those circumstances, the measure of the Defendant's damages under the law would not be the cost of such reconstruction; rather, it would be the difference between the market value of the property as actually improved by the Plaintiff, and the market value the property would have had at the time in question if it had been improved in compliance with the plans and specifications incorporated in the contract. These issues will be presented to you for resolution through the answers you supply to questions seven through ten, as follows:7. If you answered Yes to Question Six, do you find from a preponderance of the evidence that the defects and/or omissions in the work are reasonably susceptible of correction and completion without necessity of substantially tearing down and rebuilding the improvements? Answer Yes or No.8. If you answered Yes to Question Six and Question Seven, what amount of money do you find from a preponderance of the evidence tobe due to the Defendant as compensatory damages for the Plaintiff's failure to substantially perform its contract for the construction of the work, the measure of such damages being the reasonable cost in money necessary to correct or complete the defects and/or omissions in the construction? Answer in Dollars and Cents.9. If you answered Yes to Question Six and No to Question Seven, do you find from a preponderance of the evidence that the defects and/or omissions in the work are of such a character that in order to reasonablycorrect or complete them it would be necessary to substantially tear down and rebuild the work? Answer Yes or No.10. If you answered Yes to Question Six and Question Nine, what amount of money do you find from a preponderance of the evidence tobe due to the Defendant as compensatory damages for the Plaintiff's failure to substantially perform its contract for the construction of the work, the measure of such damages being the difference between the fair market value of the defective work and the fair market value the work would have had if properly completed in accordance with thecontract? Answer in Dollars and Cents. 5.1 Breach Of Construction Contract Claim By Contractor - Counterclaim By Owner SPECIAL INTERROGATORIES TO THE JURYDo you find from a preponderance of the evidence:1. That the Plaintiff substantially performed its obligations under the contract (and change orders) for the construction of the work?Answer Yes or No 2. If you answered "Yes" to Question One, what amount of money do you find to be due and unpaid by the Defendant to the Plaintiff under the contract (without reduction in amount for any damages Defendant may have sustained due to lack of full and complete performance)?Answer in Dollars and Cents $ 3. If you answered "Yes" to Question One, that the Defendant nevertheless sustained damages by reason of a failure on the part of the Plaintiff to fully and completely perform the construction work? Answer Yes or No4. If you answered "Yes" to Question Three, that the Defendant prevented the Plaintiff from fully and completely performing the construction work? Answer Yes or No5. If you answered "Yes" to Question Three[, and "No" to Question Four], what amount of money do you find from a preponderance of the evidence to be due to the Defendant on account of such damages, measured by the reasonable cost in money necessary to supply or correct the deficiencies in the Plaintiff's failure to fully and completely perform the contract work? Answer in Dollars and Cents $ 6. If you answered "No" to Question One, do you find from a preponderance of the evidence that the Plaintiff failed to substantially perform its obligations under the contract (and change orders) for the construction of the work? Answer Yes or No7. If you answered "Yes" to Question Six, do you find from a preponderance of the evidence that the defects and/or omissions in the work are reasonably susceptible of correction and completion without necessity of substantially tearing down and rebuilding the improvements? Answer Yes or No8. If you answered "Yes" to Question Six and Question Seven, what amount of money do you find from a preponderance of the evidence to be due to the Defendant as compensatory damages for the Plaintiff's failure to substantially perform its contract for the construction of the work, the measure of such damages being the reasonable cost in money necessary to correct or complete the defects and/or omissions in the construction? Answer in Dollars and Cents $ 9. If you answered "Yes" to Question Six and "No" to Question Seven, do you find from a preponderance of the evidence that the defects and/or omissions in the work are of such a character that in order to reasonably correct or complete them it would be necessary to substantially tear down and rebuild the work? Answer Yes or No10. If you answered "Yes" to Question Six and Question Nine, what amount of money do you find from a preponderance of the evidence to be due to the Defendant as compensatory damages for the Plaintiff's failure to substantially perform its contract for the construction of the work, the measure of such damages being the difference between the fair market value of the defective work and the fair market value the work would have had if properly completed in accordance with the contract? Answer in Dollars and Cents $ SO SAY WE ALL. Foreperson DATED: