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FACTS AND PROCEDURAL HISTORY

Plaintiff is the owner and developer of the Candlewood Suites Hotel (hotel). She contracted with ATMI Design Build (ATMI) to act as the general contractor to construct the hotel (Project). On November 18, 2002, ATMI entered into two subcontracts with Jose Jesus Aguilar, doing business as C&A Framing Company (C&A), one to provide materials and labor and one to perform the rough framing for the Project. In May 2003 ATMI fired C&A before he had completed all the work required by the subcontract. ATMI hired another contractor to complete C&A’s work.1 After May 2003 C&A never returned to the construction site and did not communicate with anyone connected with the Project. The Notice of Completion for the Project was recorded April 15, 2004, and the Certificate of Occupancy was issued April 16, 2004.

Plaintiff cites to C&A’s deposition testimony stating he completed the work under the first subcontract to provide materials and completed 98 percent of the second subcontract and the only thing left to do was “pickup work.” In another deposition C&A testified he had completed 90 to 95 percent of the contract work. Plaintiff asserts C&A was “thrown off the…