Type: Law Bulletins
Date: 03/26/2018

Contractors: Pause and Think Before You Hit That Send Button

Ill-thought out emails are the bane of many businesses these days. And, given the constant need for communication in the hustle and bustle of doing construction work, the danger of sloppy and damaging emails is ever present. A recent case from Northern Ohio demonstrates the consequences of a lack of careful attention to those way too easy to send emails.

Mike McGarry & Sons, Inc. was hired as a subcontractor to do some painting in a building being renovated for about $118,000. Seems like a fairly straightforward and simple project, right? Not much opportunity for miscommunication, right? Well, just the opposite. Generally, there was sloppiness in describing what the actual scope of work was, which resulted in a claim for extras that would have more than doubled the contract price. Ouch! Here, however, I want to focus on the one bad email that McGarry must wish was never sent.

After the painting work was essentially done, at the latest by Oct. 31, 2013, the general contractor notified McGarry that portions of the job suffered from “bleed through.” McGarry responded saying that if the general contractor wanted McGarry to touch-up the work, it could do so and asked the general contractor to let McGarry know whether it would like McGarry to proceed. There was no response. Nonetheless, McGarry proceeded to do the touch-up work, which was completed on Nov. 22, 2013.

McGarry then ended up filing a mechanic’s lien on Feb. 5, 2013. One issue in the case was whether that filing was timely under the statute which requires such filings to be made within 75 days of the last work on the job. If the last work was truly on Oct. 31, 2013, the lien was filed untimely and therefore was invalid for that reason. If the last work was on Nov. 22, 2103, it would have been timely.

So now we come to that email McGarry very likely wishes it had never sent. In an internal email, one McGarry brother wrote to another “I also spoke to Gary the plant manager about touching up area that have rust bleed through (I’m trying to touch-up before 11-21-13 to extend our lien rights) * * * .”  That email became a headache for McGarry in the litigation. It made it look like McGarry was not really simply completing its work—which would have extended the deadline to file a mechanic’s lien—but fabricating additional work for the sole purpose of extending the deadline. As a result, the trial court concluded that McGarry “pretextually arranged with the tenant at the Property to perform this work in order to inappropriately extend its lien rights” and McGarry “falsely represented the last day of work.” On that basis, the trial court determined that the lien was invalid and the appellate court did not reverse that determination. That was not the only reason McGarry lost on its mechanic’s lien claim, but that email was a gift to its opposition in smearing McGarry’s character and motives before the Court.

The email also caused McGarry other headaches. The owner filed a counterclaim against McGarry contending that McGarry had fraudulently filed its lien and thereby also disrupted the financing it was trying to arrange through a mortgage on the property. The email was red meat to support those claims resulting in what had to be significant additional legal costs to deal with these counterclaims. McGarry ended up winning on these claims, but the moral of the story is that such claims may not have been made and/or may have been much more easily defeated without that email. McGarry no doubt had to address that email in documentary discovery, in depositions, at trial and again on appeal. It was a costly error, even if it won a technical victory on the counterclaims in the end.

It cannot be said enough, be careful with your emails. Be clear in your communications. Pause and reflect before you hit the send button, even with internal emails. Always conduct yourself as if the world is going to see emails that you think are private when you send them.

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