Topeka contractor expands allegations against M&M's parent company

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TOPEKA, Kan. (WIBW) -- In an updated lawsuit, a Topeka contractor added more allegations that a candy giant operating in Topeka owes the contractor $2.544 million based on more legal points.

McElroy's, a Topeka contractor, is seeking to collect $2.544 million from Mars Wrigley Confectionery for work the contractor did.

McElroy's Inc., 3310 S.W. Topeka Blvd., sued Mars, formerly known as Mars Chocolate North America, a Delaware corporation.

In Topeka, Mars is located at 100 Mars Blvd. in far south Topeka.

The additional counts include violation of the Kansas Fairness in Private Construction Contracts Act; a breach of the implied covenant of good faith and fair dealing; a doctrine based on the concept no one who benefits by the labor and materials of another should be unjustly enriched, according to "Black's Law Dictionary;" and a breach of the implied covenant of good faith and fair dealing.

Mars contests the lawsuit and is seeking a judgment in its favor against McElroy's in the principal amount of $2.553 million,

McElroy's originally filed the lawsuit in Shawnee County District Court on January 18, 2019, but the case later was moved to U.S. District Court.

Earlier this year, Mars sought to move the case to federal court, saying:

-- Moving it to the federal court was proper since the lawsuit was started in Shawnee County, which is in the federal District of Kansas' Topeka division.

-- Mars and McElroy have "complete diversity." Kansas is the state of McElroy's formation and its principal place of business, and Mars wasn't formed in Kansas and Kansas isn't the candy company's principal place of business.

-- The amount in controversy is more than the $75,000 threshold for moving the jurisdiction for diversity cases.

McElroy's Inc. is represented by James B. Biggs and Eric Unrein, Topeka attorneys, and Mars is represented by John H. Hutton, of Topeka, and J. Phillip Gragson, of Wichita.

The case is assigned to U.S. District Court Judge Sam Crow and U.S. Magistrate Judge Teresa J. James.

McElroy's performed work on the Mars Wrigley property from Jan. 25 to May 25, 2018.

In the lawsuit, McElroy's alleges breach of contract by Mars Wrigley, unjust enrichment against the defendant, and seeks enforcement of lien, the court filing said.

Besides the $2.544 million, McElroy's also is seeking payment of interest, costs and attorneys fees in the action.

The contract between McElroy's and Mars said the total amount due to the contractor for the project was $5.586 million, the lawsuit said.

McElroy's has been paid $2.837 million by Mars Wrigley, which is slightly more than half the amount owed, the lawsuit said.

McElroy's provides heating, air conditioning, and plumbing services.
The jury trial to resolve the lawsuit is expected to start more than seven months from now, according to a court scheduling order.

A pretrial conference is scheduled for February 20, 2020, and a specific date for the trial has yet to be scheduled, according to the scheduling order.