Subcontractors file suit against Rockingham

Wednesday February 20, 2013

ROCKINGHAM -- Subcontractors hired by Keene, N.H.-based Baybutt Construction Corporation for the Rockingham Free Public Library renovation project are suing the general contractor, the architecture firm behind the project's design and the town with a variety of claims.

Hodgkins & Son, Inc., Lawrence & Lober Electric -- both listed as Bellows Falls businesses -- and Window Master, Inc. of Dublin, N.H., have included Baybutt Construction Corporation and Sheerr McCrystal Palson Architecture, Inc. in the lawsuit, claiming they have not been paid for work completed on the project.

Hodgkins and Lawrence & Lober are owed $18,698 and $156,220, respectively, according to court documents.

Baybutt Construction's president, Frederick L. Baybutt, has filed for personal bankruptcy, stating in court documents he owes between $1 million and $10 million to creditors. He filed for Chapter 11 bankruptcy Thursday, Feb. 14, in United States Bankruptcy Court in Manchester, N.H. In court documents, he claimed to owe money to between 50 and 99 creditors. Chapter 11 bankruptcy allows any debtor to reorganize while being protected from creditors. Baybutt has until June 14 to present a plan for reorganization and cannot be contacted by creditors until then.

Hodgkins, Lawrence & Lober and Window Master, who are seeking compensatory damages in Windham Superior Court in Newfane, have filed eight complaints against the three defendants and accuse the town of negligence for not making sure Baybutt secured performance and payment bonds as part of the Rockingham Library renovation project.

The town also is accused of unjust enrichment/restitution, promissory estoppel/detrimental reliance, perfection of contractor's lien and negligence/negligent misrepresentation.

Larry Slason, the lawyer representing the plaintiffs, told the Reformer the Rockingham Selectboard delegated all responsibilities to the Rockingham Library Board of Trustees, who he said "let the project get away from them."

The library project hit a snag months ago, when subcontractors refused to continue their jobs and insisted they had not been paid for the work they had already done. Rockingham town officials terminated the contract with Baybutt Construction soon thereafter when information about the company's financial woes came to light.

Rockingham Selectboard members also said Baybutt, under oath, falsely stated all appropriate amounts were paid to subcontractors that issued certificates for payment.

Baybutt Construction did not take out a performance bond or a payment bond, which act as a sort of insurance contract. Rockingham Town Counsel Stephen Ankuda said having a performance bond was a project requirement from the town. Baybutt submitted a statement, which said the business was entitled to be paid for percentages of the project completed and that it had a $21,000 performance bond, which it actually did not. Ankuda said he was told Baybutt thought it had the necessary bonds.

Slason said the town failed to act with diligence to make sure the bond was in place and approved budgets without assurance that subcontractors, or subs, were being paid. He said that is standard practice.

A number of liens totaling about $500,000 have been filed in the Rockingham town land records office by various subcontractors and vendors. Liens filed in Windham Superior Court by the three plaintiffs who have filed suit total more than $196,000.

Though he does not think it was intentional, Slason also said Rockingham negligently misrepresented the subs, who believed a 100 percent performance and payment bond was in full force and effect.

Ankuda previously told the Reformer the town has paid Baybutt Construction for the work completed on the library, which is open during construction. He said Rockingham signed a typical American Institute of Architects contract, which he said is standard in the industry.

The plaintiffs are suing Sheerr McCrystal Palson Architecture for negligence/negligent misrepresentation, alleging that the architect also never confirmed a bond was in place.

Complaints filed against Baybutt Construction in Windham Superior Court include breach of contract, violation of the Prompt Payment Act and perfection of contractor's lien. The plaintiffs claim they have not been paid for work done even though Baybutt Construction was paid by Rockingham. Slason said he believes some of the money paid was diverted by Baybutt Construction to other projects. Ankuda previously told the Reformer a general contractor is required to compensate the subs within seven days of being paid.

Rockingham Selectboard Chairman Tom MacPhee said the trustees selected Baybutt Construction -- which has been in business as a family-owned company since 1964 -- as the general contractor, but the Selectboard got involved only "once things went south." He said the board intervened because the library is owned by the town.

The state of Vermont also canceled a contract with the company due to issues similar to those in Rockingham. The town of Antrim, N.H., followed and terminated its contract with Baybutt Construction, which had been tasked with building a new police station.

Frederick Baybutt listed his assets as between $500,000 and $1 million in court documents. He owes more than $1 million to the 20 listed largest unsecured creditors and though Baybutt Construction has not filed for bankruptcy, the company owes money to many of the creditors for construction projects.

Nineteen of those 20 are subcontractors that worked on the $2.9 million Rockingham Free Public Library in Bellows Falls. PJB Home Center, Inc. of West Chesterfield, N.H., -- the only of the 20 largest unsecured creditors that did not work on the library project -- is listed as being owed the most money ($191,583.63).

ARC Mechanical Contractors in Bradford was owed the most of any subcontractor, $190,350.80. Other creditors listed in court documents include banks, and a bottled water business, among others. A meeting of creditors is scheduled for 10 a.m. at the bankruptcy court in Manchester, N.H., on Thursday, March 21.

Calls to a handful of the subcontractors Tuesday were unsuccessful, as was a call to Baybutt Construction.

The company also is on the receiving end of lawsuits filed by PJB Home Centers and U.S. Electrical Services, Inc. in regards to a project at the Brattleboro Food Co-op, which also is being sued by both those parties.

Domenic Poli can be reached at, or 802-254-2311, ext. 277. You can follow him on Twitter @dpoli_reformer.


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