Suit by Mark Fondell Excavating, Inc. E-FILED 2015 MAR 27 1:39 PM DUBUQUE - CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY
MARK FONDELL EXCAVATING, INC.,)
} Case No. EQCV 102,81L�
Plaintiff, )
vs. ) PETITION
}
CITY OF DUBUQUE )
Defendant. )
COMES NOW, the above-named Plaintiff, by and through its attorney of record, and
for its causes of action against Defendant, states as follows:
PARTIES
1. Plaintiff, Mark Fondell Excavating, Inc. ("Fondell"), is an Iowa corporation in
good standing with its principal place of business at 2270 Crown Point Road, Dubuque, IA,
52002.
2. Defendant, City of Dubuque ("City"), is a municipality located in Dubuque County,
Iowa.
3. Jurisdiction and venue of this matter are properly in the Iowa District Court for
Dubuque County.
FACTUAL BACKGROUND
4. Sometime before September 10, 2010, Defendant entered into an agreement with
Miron Construction Company, Inc. ("Miron") for the general construction of the City of
Dubuque's Water Pollution Control Plant Modification Project ("the Project").
5. Miron then entered into an agreement with J.F. Ahern Company ("JFA") to be a
subcontractor for a portion of the Project.
b. In turn, on September 10, 2010, JFA entered into an agreement with Plaintiff for
Plaintiff to be a subcontractor for a portion of JFA's portion of the Project.
E-FILED 2015 MAR 27 1;39 PM DUBUQUE - CLERK OF DISTRICT COURT
7. At various times during the construction of the Project, agents of the City requested
and demanded that Plaintiff perform certain work over and above, and outside the scope of
work covered by the subcontract between JFA and Plaintiff.
8. Plaintiff provided labor and materials requested and demanded by Defendant, both
under its subcontract with JFA, and over, above, and outside that subcontract.
9. Plaintiff provided labor and materials requested and demanded by Defendant, both
under its subcontract with JFA, and over, above, and outside that contract with the clear
understanding that it would be paid for all such labor and materials provided.
10.Plaintiff made claims for the labor and materials provided on the Project which
were timely filed with the City under Iowa Code Chapter 573 for amounts due under the
subcontract with JFA, and for the additional amounts due for labor and materials provided
over, above, and outside the scope of the subcontract with JFA.
11.The Project has been fully completed and accepted by Defendant,
12. Most of the amount due Plaintiff under the subcontract with JFA was eventually
paid from retainage that JFA had been holding for completion of the Project.
13. In conjunction with that payment, Plaintiff released its Chapter 573 claim against
the City, though it did not waive its other claims for labor and materials over and outside the
scope of the subcontract with JFA.
14, Plaintiff has never been paid for any of the labor and materials provided to
Defendant over, above, and outside of the scope of the subcontract with JFA.
15. The amount due Plaintiff for labor and materials provided by Plaintiff, over,
above, and outside the scope of the subcontract with JFA remains unpaid and exceeds
$75,000.00. See Plaintiff's Exhibits "A", "B", and "C," which are Plaintiff's "Itemized
Statement of Claim" (1 page), "Application and Certificate for Payment No. 22" (5 pages),
and "Plaintiff's Itemized Spreadsheet of Work Performed on the City of Dubuque Water
Pollution Control Plant Project" (34 pages), respectively.
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E-FILED 2015 MAR 27 1:39 PM DUBUQUE - CLERK OF DISTRICT COURT
CAUSES OF ACTION
COUNT I- Unjust Enrichment
15. Plaintiff re-alleges and incorporates by reference paragraphs 1-15 of this Petition
as if fully set forth herein.
17. In providing the additional labor and materials on the Project as requested by
Defendant, Plaintiff conferred a benefit to Defendant to Plaintiff's financial detriment.
18. Defendant understood, appreciated, and accepted the benefit of the additional labor
and materials Plaintiff provided to Defendant over, above, and outside the scope of the contract
between Defendant and Miron, the subcontract between Miron and JFA, and the subcontract
between JFA and Plaintiff.
19. Plaintiff does not have an adequate remedy at law for the additional benefit
provided to Defendant.
WHEREFORE, Plaintiff requests judgment against Defendant for an amount to
compensate it for its damages, together with costs, interests, and such other relief as the Court
deems just and proper.
COUNT II- Implied-In--Fact Contract for•Services (Quantum Meruit)
20. Plaintiff re-alleges and incorporates by reference paragraphs 1-15 of this Petition
as if full set forth herein.
21. Defendant understood that the additional labor and materials it requested from
Plaintiff over, above, and outside the scope of the subcontract between Defendant and Miron,
the subcontract between Miron and JFA, and the subcontract between .IFA and Plaintiff, were
provided on its behalf, and not for some other entity.
22. The additional labor and materials provided by Plaintiff at Defendant's
request/demand were provided by Plaintiff with the expectation of compensation by Defendant.
23. Defendant received a benefit as a result of the additional labor and materials
Plaintiff provided to Defendant over, above, and outside the scope of the contract between
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E-FILED 2015 MAR 27 1:39 PM DUBUQUE - CLERK OF DISTRICT COURT
Defendant and Miran, the subcontract between Miron and JFA, and the subcontract between
JFA and Plaintiff.
24. The benefits conferred by Plaintiff on Defendant are not capable of being returned.
25. It is inequitable to allow the Defendant to retain the benefit of Plaintiff's labor and
services.
WHEREFORE, Plaintiff requests judgment against Defendant for an amount to
compensate it for its damages, together with costs, interests, and such other relief as the Court
deems just and proper.
COUNT III- Pjomissoty Estoppel
26. Plaintiff re-alleges and incorporates by reference paragraphs 1-15 of this Petition
as if full set forth herein.
27. At various times during the construction of the Project, agents of the Defendant
requested and demanded that Plaintiff perforin certain work over, above, and outside the scope
of work covered by the subcontract between JFA and Plaintiff.
28. Plaintiff provided labor and materials requested and demanded by Defendant,
both under its subcontract with JFA, and over, above, and outside that subcontract.
29. Plaintiff understood the request and demands by agents of Defendant for certain
work over, above, and outside the scope of the work covered by the subcontract between JFA
and Plaintiff to be a clear and definite promise which was made with Defendant's clear
understanding that Plaintiff was seeking and receiving an assurance of payment of which
Plaintiff could rely and without which Plaintiff would not act.
30. Plaintiff acted to its substantial detriment in reasonable reliance upon the
Defendant's clear and definite promise to pay for additional labor and materials.
31. An injustice can be avoided only by the enforcement of the Defendant's promise
to Plaintiff for payment for additional labor and materials.
WHEREFORE, Plaintiff requests judgment against Defendant for an amount to
compensate it for its damages, together with costs, interests, and such other relief as the Court
deems just and proper.
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E-FILED 2015 MAR 27 1:39 PM DUBUQUE - CLERK OF DISTRICT COURT
DATED this 26"' day of March, 2015.
Respectfully submitted.
KENNEDY, CRUISE, FREY & GELNER, LLP
By:
Marcus M. Mills AT0005'72
920 South Dubuque Street
P.O. Box 2000
Iowa City, Iowa 52244
Telephone: (319) 351-8181
Facsimile: (319) 351-0605
Email: mmills@kcfglaw.com
com
ATTORNEYS FOR PLAINTIFF
MARK FONDELL EXCAVATING, INC.
MM9\V57a2357
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