The Joplin Globe, Joplin, MO

April 21, 2008

Subcontractor files lawsuit

By Derek Spellman

NEOSHO, Mo. — A subcontractor that provided materials for improvements to the Newton County Senior Center is now suing both the general contractor and the city of Neosho for $13,900 after the former allegedly failed to pay for the materials.

Ozark Structures Inc., of Brookline, Mo., alleges that it still has not been paid for the prefabricated metal roof trusses that it furnished to Darin Miller Construction Inc., of Webb City, in October 2007 for the expansion and renovation of the center, according to a petition recently filed in Newton County Court.

The city of Neosho awarded a contract of more than $476,000 total to Darin Miller Construction last year for the work.

Ozark Structures Inc. has named the city of Neosho as a co-defendant in the case because it owns the Senior Center building and the city has withheld payment from Darin Miller Construction, according to the petition.

The phone number listed for Darin Miller Construction is no longer in service, according an automated recording. Efforts to contact Darin Miller himself, the company president, at his home were unsuccessful.

Neosho City Manager Jan Blase said that the city did withhold a final payment of about $48,300 from Darin Miller Construction after discovering that some of the company’s work had either been substandard or did not conform to contract specifications.

Another contractor did have to be hired to finish or redo some of that work at a cost of about $20,000, Blase said. Aside from some cosmetic work, including some landscaping, the project is complete, Blase said.

But Blase also said the city has previous reports that other subcontractors also were not paid by Darin Miller Construction. So far, the suit brought by Ozark Structures is the only one pending against the city in connection with the project, according to online court records.

Blase said he had confronted Darin Miller himself about the complaints from subcontractors, but Miller assured him those reports were false and the subcontractors were being paid.

The city attorney is now reviewing the case information and investigating whether the city should ask the county to prosecute Darin Miller on allegations of fraud, he said.

Blase said a clerical error indicated Darin Miller had filed a performance bond for the work, although neither city staff nor its project consultants, Pellham Phillips Architects & Engineers, of Springfield, ever verified that it had been.

Blase said the city thought the architect was to have verified that the performance bond was actually filed as part of its agreement with the firm. Phone messages left for Phil Young, the project architect, at Pellham Phillips offices were not returned.

Blase acknowledged that the city still bore part of the blame for the mistake and has since instituted several safeguards, including new procedures on the city’s end to ensure a bond has been filed, and requiring several people on staff to verify that it has been.

“We do know that we made a mistake in the performance bond, and so did our consultants,” Blase said. “We have taken steps to correct it.”

Meanwhile, the city is investigating whether the money it has withheld from Darin Miller Construction can be used to directly pay the subcontractors with claims of non-payment.

“If anybody who is involved will be patient, I think we will resolve it,” Blase said.

By the numbers

Ozark Structures Inc., Brookline, Mo., is asking that it be paid for the cost of the prefabricated roof trusses along with interest at the rate of 1.5 percent per month since Dec. 8, 2007.