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Owner of Restoration Contractor Absconds with Contract Funds: Personally Liable for Treble Damages and Attorney’s Fees for Trust Fund Violation

A mechanical contractor subcontracted with a restoration contractor to replace air handling units damaged by hail. Although the owner paid the restoration contractor in full, it failed to pay the mechanical subcontractor any amount. The mechanical contractor obtained a Judgment against the restoration contractor for breach of contract but could not collect any amount because the restoration contractor had ceased doing business.

After learning one owner of the restoration contractor had diverted hundreds of thousands of dollars for the project to pay his personal expenses, including credit card bills, travel, club memberships and meals, the mechanical contractor sued him claiming he breached the trust fund provision of the Mechanic’s Lien Act. Before and during the trial the owner claimed he was not affiliated with the restoration contractor even though he was the sole signer on its bank accounts and controlled its financial decisions. The trial lasted two days in which the mechanical contractor was represented by Karl Berg. Despite the owner’s emphatic claims he was the victim and that the other two owners of the company were responsible for the mechanical contractor not being paid, the Court found for the mechanical contractor and awarded it treble damages and attorney’s fees under the theft statute, resulting in a total Judgment approaching $90,000, proving that crime does not always pay.

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