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HAMPSHIRE, SS.
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 1580CV00237
UNITED WALLS SYSTEMS LLC,
WESTERN BUILDERS, INC.; and
THE TRUSTEES OF THE SMITH
COLLEGE,
Plaintiff
ANSWER AND
COUNTERCLAIM OF
WESTERN BUILDERS, INC.
Defendants
The Defendant admits the allegations contained in paragraph 1 of the Plaintiff's
Complaint.
The Defendant admits the allegations contained in paragraph 2 of the Plaintiff's
Complaint.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 3 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 4 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 5 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 6 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant repeats and restates its Answers to paragraphs | through 6 of the
Plaintiffs Complaint and incorporates them herein by reference.
oJ
15 207
517.
18.
19.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 8 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant admits the allegations contained in paragraph 9 of the Plaintiff's
Complaint.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 10 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 11 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 12 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 13 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant admits that it entered into an agreement with the Plaintiff on or
about May 12, 2015. By way of further answer, the Defendant says the document
speaks for itself.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 15 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 16 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The allegations contained in paragraph 17 of the Plaintiffs Complaint relate to a
written document and the Defendant states that the document speaks for itself.
The allegations contained in paragraph 18 of the Plaintiff's Complaint relate to a
written document and the Defendant states that the document speaks for itself.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 19 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.20.
21.
22.
23.
24.
25.
26.
27.
28.
29,
30.
The allegations contained in paragraph 20 of the Plaintiff's Complaint relate to a
written document and the Defendant states that the document speaks for itself.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 21 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 22 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 23 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 24 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 25 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 26 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 27 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 28 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 29 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant admits that it sent UWS a letter dated July 24, 2015, but lacks
sufficient information with which to admit or deny the remaining allegations of
paragraph 30 of the Plaintiff's Complaint.31.
32.
33.
34.
35.
36.
37.
38.
39,
40.
41.
42.
43.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 31 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant denies the allegations contained in paragraph 32 of the Plaintiff's
Complaint.
The Defendant denies the allegations contained in paragraph 33 of the Plaintiff's
Complaint.
The Defendant denies the allegations contained in paragraph 34 of the Plaintiff's
Complaint.
The Defendant denies the allegations contained in paragraph 35 of the Plaintiff's
Complaint.
The Defendant denies the allegations contained in paragraph 36 of the Plaintiff's
Complaint.
The Defendant denies the allegations contained in paragraph 37 of the Plaintiff's
Complaint.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 38 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 39 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 40 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant denies the allegations contained in paragraph 41 of the Plaintiff's
Complaint.
COUNT I
The Defendant repeats and restates its Answers to paragraphs | through 41 of the
Plaintiffs Complaint and incorporates them herein by reference.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 43 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
444,
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 44 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 45 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 46 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 47 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant denies the allegations contained in paragraph 48 of the Plaintiff's
Complaint.
COUNT I
The Defendant repeats and restates its Answers to paragraphs | through 48 of the
Plaintiff's Complaint and incorporates them herein by reference.
The Defendant denies the allegations contained in paragraph 50 of the Plaintiff's
Complaint.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 51 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 52 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant denies the allegations contained in paragraph 53 of the Plaintiff's
Complaint.
COUNT Il
The Defendant repeats and restates its Answers to paragraphs | through 53 of the
Plaintiff's Complaint and incorporates them herein by reference.55.
56.
57.
38.
59.
60.
61.
62.
63.
64.
65.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 55 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 56 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 57 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 58 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 59 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 60 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
COUNT IV
The Defendant repeats and restates its Answers to paragraphs | through 60 of the
Plaintiff's Complaint and incorporates them herein by reference.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 62 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 63 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 64 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 65 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 66 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 67 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
COUNT V
The Defendant repeats and restates its Answers to paragraphs | through 67 of the
Plaintiff's Complaint and incorporates them herein by reference.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 69 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 70 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 71 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 72 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant denies the allegations contained in paragraph 73 of the Plaintiffs
Complaint.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 74 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 75 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 76 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
The Defendant denies the allegations contained in paragraph 77 of the Plaintiff's
Complaint.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 78 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
COUNT VI
The Defendant repeats and restates its Answers to paragraphs | through 78 of the
Plaintiff's Complaint and incorporates them herein by reference.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 80 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 81 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 82 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant denies the allegations contained in paragraph 83 of the Plaintiff's
Complaint.
The Defendant denies the allegations contained in paragraph 84 of the Plaintiff's
Complaint.
The Defendant denies the allegations contained in paragraph 85 of the Plaintiff's
Complaint.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 86 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 87 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
COUNT VII
The Defendant repeats and restates its Answers to paragraphs 1 through 87 of the
Plaintiff's Complaint and incorporates them herein by reference.
889.
90.
91.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 89 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 90 of the Plaintiff's Complaint and, therefore,
calls upon the Plaintiff to prove same.
The Defendant lacks sufficient information with which to admit or deny the
allegations contained in paragraph 91 of the Plaintiffs Complaint and, therefore,
calls upon the Plaintiff to prove same.
WHEREFORE, the Defendant demands that Counts I through VII of the
Plaintiff's Complaint be dismissed with costs.
10.
AFFIRMATIVE DEFENSES
The Complaint fails to state a claim or claims upon which relief may be granted.
Plaintiffs claims are barred in whole or in part by the terms of its contract with the
Defendant.
The Plaintiff’s claims are barred by its failure to comply with all required
conditions precedent to the maintenance of this claim.
The Plaintiff is barred from recovery because of its own breach of contract.
The Plaintiff's damages, if any, are attributable to its own acts and/or omissions.
The Plaintiff failed to strictly comply with the terms of the contract and, therefore,
is barred from recovery.
The Plaintiff, by its own conduct, should be estopped from asserting its claim
against the Defendant.
The Plaintiff's claims are barred by the doctrines of accord and satisfaction,
release, latches, unclean hands and waiver.
The Plaintiff's damages, if any, are the result of conduct by another over whom
the Defendant has no control.
To the extent Defendant had any obligations to the Plaintiff, any such obligations
have been completely performed and, therefore, the Plaintiff is barred from
recovery.12.
The Plaintiff failed to comply with M.G.L. c. 254, §1, et seq and therefore, is
barred from recovery.
The Defendant is entitled to a setoff/recoupment of any damages the Plaintiff may
recover.
COUNTERCLAIM
The Defendant/Plaintiff in Counterclaim is Western Builders Inc. (“Western”)
which is a Massachusetts corporation with a usual place of business at 73 Pleasant
Street, Granby, Massachusetts.
The Plaintiff/Defendant in Counterclaim is United Walls Systems, LLC (“UWS”)
which is a Massachusetts corporation with a usual place of business at 19 Garland
Street, Fitchburg, MA 01420.
UWS represented to Western that it had sufficient skill and manpower to provide
and install all wall, partition, ceiling and soffit assemblies for a project being
constructed by Western at Paradise Road, Northampton, Massachusetts.
In reliance upon UWS’s representation, Western entered into a subcontract with
UWS on or about May 12, 2015.
UWS failed to provide sufficient skilled manpower to install wall, partition,
ceiling and soffit assemblies at the project.
COUNT I
The Defendant/Plaintiff in Counterclaim repeats and restates the allegations in
paragraphs | through 5 of the Counterclaim and incorporates them herein by
reference.
UWS breached its contract with Western by failing to supply sufficient skilled
manpower to install wall, partition, ceiling and soffit assemblies for the project
being constructed by Western at 69 Paradise Road, Northampton, Massachusetts.
Western performed its obligations pursuant to the terms of the subcontract.
As aresult of UWS’s breach, Western has suffered substantial damages.
WHEREFORE, Western demands Judgment against UWS, plus interest and costs.
1010.
11.
12.
13.
COUNT I
The Defendant/Plaintiff in Counterclaim repeats and restates the allegations in
paragraphs | through 9 of the Counterclaim and incorporates them herein by
reference.
In reliance upon UWS’s representations, Western entered into a subcontract with
UWS.
UWS’s representations were false.
As a result of UWS’s misrepresentations, Western has suffered substantial
damages.
WHEREFORE, Western demands Judgment against UWS, plus interest and costs.
DEFENDANT/PLAINTIFF INCOUNTERCLAIM DEMANDS A TRIAL BY
JURY ON ALL ISSUES SO TRIABLE.
Date: December 31, 2015
WESTERN BUILDERS, INC.
Mark E. Draper, Esquire, BBO #)64540
Annino, Draper & Moore, P.C,
1500 Main Street, Suite 2504
P.O. Box 15428
Springfield, MA 01115-5428
Telephone (413) 732-6400
Facsimile (413) 732-3339
mdraper@admlawfirm.com
CERTIFICATE OF SERVICE
I, Mark E. Draper, Esq., attorney for Western Builders, Inc. hereby certify that on
this 31st day of December, 2015, I served a copy of the foregoing Answer and
Counterclaim by mailing a copy of same via first class mail, postage prepaid, to:
Paul J. Hogan, Esquire
Hogan & Associates
345 Neponset Street, First Floor
Canton, MA 02021
ark E, Draper, Esquire
ll
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HAMPSHIRE, SS. COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 1580CV00237 UNITED WALLS SYSTEMS LLC, WESTERN BUILDERS, INC.; and THE TRUSTEES OF THE SMITH COLLEGE, Plaintiff ANSWER AND COUNTERCLAIM OF WESTERN BUILDERS, INC. Defendants The Defendant admits the allegations contained in paragraph 1 of the Plaintiff's Complaint. The Defendant admits the allegations contained in paragraph 2 of the Plaintiff's Complaint. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 3 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 4 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 5 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 6 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant repeats and restates its Answers to paragraphs | through 6 of the Plaintiffs Complaint and incorporates them herein by reference. oJ 15 207 517. 18. 19. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 8 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant admits the allegations contained in paragraph 9 of the Plaintiff's Complaint. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 10 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 11 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 12 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 13 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant admits that it entered into an agreement with the Plaintiff on or about May 12, 2015. By way of further answer, the Defendant says the document speaks for itself. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 15 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 16 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The allegations contained in paragraph 17 of the Plaintiffs Complaint relate to a written document and the Defendant states that the document speaks for itself. The allegations contained in paragraph 18 of the Plaintiff's Complaint relate to a written document and the Defendant states that the document speaks for itself. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 19 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same.20. 21. 22. 23. 24. 25. 26. 27. 28. 29, 30. The allegations contained in paragraph 20 of the Plaintiff's Complaint relate to a written document and the Defendant states that the document speaks for itself. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 21 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 22 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 23 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 24 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 25 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 26 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 27 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 28 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 29 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant admits that it sent UWS a letter dated July 24, 2015, but lacks sufficient information with which to admit or deny the remaining allegations of paragraph 30 of the Plaintiff's Complaint.31. 32. 33. 34. 35. 36. 37. 38. 39, 40. 41. 42. 43. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 31 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant denies the allegations contained in paragraph 32 of the Plaintiff's Complaint. The Defendant denies the allegations contained in paragraph 33 of the Plaintiff's Complaint. The Defendant denies the allegations contained in paragraph 34 of the Plaintiff's Complaint. The Defendant denies the allegations contained in paragraph 35 of the Plaintiff's Complaint. The Defendant denies the allegations contained in paragraph 36 of the Plaintiff's Complaint. The Defendant denies the allegations contained in paragraph 37 of the Plaintiff's Complaint. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 38 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 39 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 40 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant denies the allegations contained in paragraph 41 of the Plaintiff's Complaint. COUNT I The Defendant repeats and restates its Answers to paragraphs | through 41 of the Plaintiffs Complaint and incorporates them herein by reference. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 43 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. 444, 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 44 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 45 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 46 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 47 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant denies the allegations contained in paragraph 48 of the Plaintiff's Complaint. COUNT I The Defendant repeats and restates its Answers to paragraphs | through 48 of the Plaintiff's Complaint and incorporates them herein by reference. The Defendant denies the allegations contained in paragraph 50 of the Plaintiff's Complaint. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 51 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 52 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant denies the allegations contained in paragraph 53 of the Plaintiff's Complaint. COUNT Il The Defendant repeats and restates its Answers to paragraphs | through 53 of the Plaintiff's Complaint and incorporates them herein by reference.55. 56. 57. 38. 59. 60. 61. 62. 63. 64. 65. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 55 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 56 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 57 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 58 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 59 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 60 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. COUNT IV The Defendant repeats and restates its Answers to paragraphs | through 60 of the Plaintiff's Complaint and incorporates them herein by reference. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 62 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 63 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 64 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 65 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same.66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 66 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 67 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. COUNT V The Defendant repeats and restates its Answers to paragraphs | through 67 of the Plaintiff's Complaint and incorporates them herein by reference. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 69 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 70 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 71 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 72 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant denies the allegations contained in paragraph 73 of the Plaintiffs Complaint. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 74 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 75 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 76 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same.77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. The Defendant denies the allegations contained in paragraph 77 of the Plaintiff's Complaint. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 78 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. COUNT VI The Defendant repeats and restates its Answers to paragraphs | through 78 of the Plaintiff's Complaint and incorporates them herein by reference. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 80 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 81 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 82 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant denies the allegations contained in paragraph 83 of the Plaintiff's Complaint. The Defendant denies the allegations contained in paragraph 84 of the Plaintiff's Complaint. The Defendant denies the allegations contained in paragraph 85 of the Plaintiff's Complaint. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 86 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 87 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. COUNT VII The Defendant repeats and restates its Answers to paragraphs 1 through 87 of the Plaintiff's Complaint and incorporates them herein by reference. 889. 90. 91. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 89 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 90 of the Plaintiff's Complaint and, therefore, calls upon the Plaintiff to prove same. The Defendant lacks sufficient information with which to admit or deny the allegations contained in paragraph 91 of the Plaintiffs Complaint and, therefore, calls upon the Plaintiff to prove same. WHEREFORE, the Defendant demands that Counts I through VII of the Plaintiff's Complaint be dismissed with costs. 10. AFFIRMATIVE DEFENSES The Complaint fails to state a claim or claims upon which relief may be granted. Plaintiffs claims are barred in whole or in part by the terms of its contract with the Defendant. The Plaintiff’s claims are barred by its failure to comply with all required conditions precedent to the maintenance of this claim. The Plaintiff is barred from recovery because of its own breach of contract. The Plaintiff's damages, if any, are attributable to its own acts and/or omissions. The Plaintiff failed to strictly comply with the terms of the contract and, therefore, is barred from recovery. The Plaintiff, by its own conduct, should be estopped from asserting its claim against the Defendant. The Plaintiff's claims are barred by the doctrines of accord and satisfaction, release, latches, unclean hands and waiver. The Plaintiff's damages, if any, are the result of conduct by another over whom the Defendant has no control. To the extent Defendant had any obligations to the Plaintiff, any such obligations have been completely performed and, therefore, the Plaintiff is barred from recovery.12. The Plaintiff failed to comply with M.G.L. c. 254, §1, et seq and therefore, is barred from recovery. The Defendant is entitled to a setoff/recoupment of any damages the Plaintiff may recover. COUNTERCLAIM The Defendant/Plaintiff in Counterclaim is Western Builders Inc. (“Western”) which is a Massachusetts corporation with a usual place of business at 73 Pleasant Street, Granby, Massachusetts. The Plaintiff/Defendant in Counterclaim is United Walls Systems, LLC (“UWS”) which is a Massachusetts corporation with a usual place of business at 19 Garland Street, Fitchburg, MA 01420. UWS represented to Western that it had sufficient skill and manpower to provide and install all wall, partition, ceiling and soffit assemblies for a project being constructed by Western at Paradise Road, Northampton, Massachusetts. In reliance upon UWS’s representation, Western entered into a subcontract with UWS on or about May 12, 2015. UWS failed to provide sufficient skilled manpower to install wall, partition, ceiling and soffit assemblies at the project. COUNT I The Defendant/Plaintiff in Counterclaim repeats and restates the allegations in paragraphs | through 5 of the Counterclaim and incorporates them herein by reference. UWS breached its contract with Western by failing to supply sufficient skilled manpower to install wall, partition, ceiling and soffit assemblies for the project being constructed by Western at 69 Paradise Road, Northampton, Massachusetts. Western performed its obligations pursuant to the terms of the subcontract. As aresult of UWS’s breach, Western has suffered substantial damages. WHEREFORE, Western demands Judgment against UWS, plus interest and costs. 1010. 11. 12. 13. COUNT I The Defendant/Plaintiff in Counterclaim repeats and restates the allegations in paragraphs | through 9 of the Counterclaim and incorporates them herein by reference. In reliance upon UWS’s representations, Western entered into a subcontract with UWS. UWS’s representations were false. As a result of UWS’s misrepresentations, Western has suffered substantial damages. WHEREFORE, Western demands Judgment against UWS, plus interest and costs. DEFENDANT/PLAINTIFF INCOUNTERCLAIM DEMANDS A TRIAL BY JURY ON ALL ISSUES SO TRIABLE. Date: December 31, 2015 WESTERN BUILDERS, INC. Mark E. Draper, Esquire, BBO #)64540 Annino, Draper & Moore, P.C, 1500 Main Street, Suite 2504 P.O. Box 15428 Springfield, MA 01115-5428 Telephone (413) 732-6400 Facsimile (413) 732-3339 mdraper@admlawfirm.com CERTIFICATE OF SERVICE I, Mark E. Draper, Esq., attorney for Western Builders, Inc. hereby certify that on this 31st day of December, 2015, I served a copy of the foregoing Answer and Counterclaim by mailing a copy of same via first class mail, postage prepaid, to: Paul J. Hogan, Esquire Hogan & Associates 345 Neponset Street, First Floor Canton, MA 02021 ark E, Draper, Esquire ll