Bailey v. Sommovigo

631 A.2d 913, 137 N.H. 526, 1993 N.H. LEXIS 113
CourtSupreme Court of New Hampshire
DecidedAugust 10, 1993
DocketNo. 92-457
StatusPublished
Cited by16 cases

This text of 631 A.2d 913 (Bailey v. Sommovigo) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Sommovigo, 631 A.2d 913, 137 N.H. 526, 1993 N.H. LEXIS 113 (N.H. 1993).

Opinion

HORTON, J.

The plaintiff, Robert Bailey, brought a plea of assumpsit to recover the balance due under a construction contract with the defendants, Aldo and Marie Sommovigo. The defendants, in turn, brought a counterclaim seeking damages from the plaintiff for breach of contract. Following a bench trial, the Superior Court (Smukler, J.) dismissed both actions, holding that while the plaintiff was entitled to the balance of the contract, this amount was entirely offset by the damages resulting from the plaintiff’s breach of contract. On appeal, the plaintiff argues that the defendants failed to prove damages caused by the breach of contract. We modify and affirm in part, and reverse in part.

In June 1989, the defendants entered into a written contract with the plaintiff, a general contractor, for the construction of a single-family home in Salem. Building plans supplied by the defendants called for a two-story house and garage containing 3,968 total square feet, including 3,264 square feet of living area. The contract incorporated the plans and provided that “[a]ny alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate.” The quoted contract price was $201,630.56.

On several occasions after the plaintiff began work on the home, defendant Marie Sommovigo requested modifications to the original building plans. In each instance, the plaintiff quoted a price for the requested modification, and Ms. Sommovigo orally accepted the quoted price. One modification concerned the installation of a separate heating system for the second floor of the house. The defendants paid the plaintiff $185,064.92 under the contract.

In April 1990, the plaintiff brought a plea of assumpsit to recover the balance due under the construction contract, as amended by the requested modifications. The plaintiff alleged that the total amount owed under the modified contract was $234,478.50, with a balance due of $49,414.08. The defendants responded that the house as constructed did not comport with the original building plans, and in December 1991 they filed a counterclaim seeking dismissal of the plaintiff’s complaint and damages for breach of contract. Specifically, the defendants claimed that the house contained only 2,865 square feet of living area; that the dimensions of certain rooms, doors, and cabinets did not comport with the original plans; that the modifications to the home effectively thwarted the design and intent of the original plan; that the house was not constructed in a “good [528]*528and workmanlike manner”; and that the plaintiff had assessed “gross and excessive overcharges for extras.”

Following a June 1992 bench trial, the trial court dismissed both the plaintiff’s plea and the defendants’ counterclaim. It first found that the parties’ conduct manifested their intent to modify the contractual requirement that all changes to the building plan be in writing. The defendants therefore were bound to pay the agreed modification costs, which, after deductions for credits and allowances, totaled $32,847.92. With regard to the defendants’ counterclaim, the trial court found that portions of the house had been painted in a defective manner, but it declined to award damages because the defendants failed to prove the cost of remedying this defect. The trial court also found that the plaintiff breached the contract by constructing a house containing less than the 3,264 square feet of living area called for by the building plans. The construction of the separate heating system, which required the installation of additional, larger heating ducts, was a “substantial cause” of the reduced living area. Although Ms. Sommovigo had requested the separate heating system, the court noted that the plaintiff had failed to explain to her “the impact the increase in duct size ... would have upon the dimensions of the interior rooms of the house, as he had a duty to do.” The court concluded that there had not been a “meeting of the minds” between the parties as to the heating system, and that there was “[n]o contractual relation between the parties ... as to that term.”

The court held that the plaintiff could recover in quantum meruit for the installation of the separate heating system, but it also held that the defendants were entitled to damages for the attendant loss of living area. The court noted that the record “contain[ed] a paucity of evidence” on the issue of damages, but it found “sufficient evidence to engage in a rational analysis” of this issue. It reasoned that the original contract price was $201,630.58 for 3,264 square feet of living area, or $61.77 per square foot. Multiplying $61.77 by the 2,580 square feet of living area actually provided, the court determined that the house, as constructed, had a value of $159,366.60, or $42,263.98 less than the original contract price. From $42,263.98, the trial court subtracted $32,369.74 — representing its determination of the balance owed under the contract — and concluded that the defendants had paid $9,894.24 in excess of the value they received. The trial court noted that the defendants had not provided evidence to support a judgment in this amount, and it used its damage calculation “for the sole purpose” of determining that the plaintiff had been [529]*529adequately compensated for his services. The trial court concluded that the appropriate remedy was dismissal of both the plaintiff’s plea and the defendants’ counterclaim.

On appeal, the plaintiff contends that the trial court erred in calculating that the balance due under the modified contract totaled $32,369.74. According to an itemized list of costs prepared by the plaintiff and uncontroverted by the defendants, the initial cost of the contract modifications totaled $43,216.76. The list indicated a deduction of $10,368.84 in credits and allowances, such that the cost of modifications totaled $32,847.92. Adding to this amount the original contract price of $201,630.56, the court calculated that the modified contract price was $234,478.50. To determine the balance due under the contract, the trial court disallowed $375 in trash removal costs, and it deducted the $185,064.92 already paid by the defendants, as well as a $6,300 note held by the plaintiff. The trial court then deducted the $10,368.84 in allowances that, as reflected in the plaintiff’s cost list, had already been credited to defendants, resulting in its conclusion that the balance owed was $32,369.74.

Although we generally defer to the trial court’s findings of fact, this rule does not apply where a finding is unsupported by the evidence or erroneous as a matter of law. See Ryan v. Perini Power Constructors, Inc., 126 N.H. 171, 173, 489 A.2d 137, 138 (1985). In this case, allowing the defendants a double credit for allowances was clearly in error. We hold that the balance due under the modified contract should be increased by $10,368.84 to $42,738.58. The plaintiff further argues that the trial court should not have deducted the $6,300 note, which he contends was never executed by the defendants. The plaintiff, however, has pointed to no evidence to support his argument that the note was not executed. At trial, the only reference to the note appeared in the list of costs prepared by the plaintiff. The list indicated that the face amount of the note was properly deducted from the balance due under the construction contract.

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Cite This Page — Counsel Stack

Bluebook (online)
631 A.2d 913, 137 N.H. 526, 1993 N.H. LEXIS 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-sommovigo-nh-1993.