STATE OF MAINE DISTRICT COURT LOC: AUGUSTA KENNEBEC, ss. DOCKET NO. AUGDC-RE-06-024 - - - \- ,+. ), ,
NATHAN DANIS, d / b / a D & D BUILDERS,
Plaintiff
v. JUDGMENT
GARY PRATT,
Defendant
This matter came on for trial before the court, without jury, on the plaintiff's
complaints and defendant's counterclaims. All the testimonial and other evidence has
been fully considered by the court, and after that consideration, judgment will be
entered for the plaintiff and the defendant in part..
Facts
This controversy arises out of a written contract between the parties by which the
plaintiff was to build a house for the defendant and the defendant was to pay for the
work and materials. The contract was in writing and signed by the parties, and consists
of the single package of materials including the proposal, building specifications and
construction agreement, which is plaintiff's Exhbit 1. This contract would be subject to
the requirements of 10 M.R.S.A. 5 1486-1490, as a home construction contract. The
contract includes the name of the parties and the address and phone number for the
contractor, the location of the work, the work dates, the contract price and method of
payment, description of the work, and provision for change orders. Although the
contract does not have a provision concerning dispute resolution or the specific warranty language set forth in the statute, it does mention a one-year warranty on workrnanshp and a four-year warranty n roof and chimney leaks (Plaintiff's Exhbit 7
change order). Therefore, the contract was in substantial compliance with the
requirements of the statute and there were no violations of the chapter.
Of particular relevance to the present litigation is that portion of the proposal
incorporated within the contract whch reads, "Start date upon signing of contract and
completed w i h n 90 days." The proposal was accepted and the agreement signed,
creating the contract, on June 15, 2005, meaning a completion date of approximately
September 15,2005, per the contract. In fact, the house construction was almost, but not
quite complete, when the defendant ordered the plaintiff off of the job on February 16,
2006. The plaintiff explains h s failure to complete the construction witlun the contract
period by delays caused by the need to blast ledge for the foundation (one month),
additional work required by the change orders and by other changes in the scope of
work (e.g., change to tongue and groove paneling for most of the interior and change in
the type of siding), the rainy weather and defendant's general interferrence. From h s
perspective, the defendant argues that the plaintiff's failure to meet the 90-day deadline
was because he spent time working on other projects. The court finds that both the
plaintiff and the defendant had a role in the failure to meet the construction deadline.
Following the plaintiff's departure from the work site, the defendant had some of
the remaining work completed. He also had other remedial work done or obtained an
estimate for such work for aspects of the construction which he believed were
substandard. Those expenses included a broken granite lentil over the fireplace (which
the court finds is not the plaintiff's responsibility), redoing parts of the drywall, redoing
the paneling on the interior and siding on the exterior, rebuilding the fireplace and new
supports for the exterior deck. Other completion items included sealing and caullung
the bathroom, installation of the lutchen countertops, installation of dead bolts and doorknobs and cleaning and sealing of the deck. These completion items and remedial
repairs, plus the defendant's expenses for remaining in his previous housing and loss of
rent for that housing, are included in the defendant's counterclaim totaling $52,486.66
according to his testimony.
The defendant had made periodic payments to the plaintiff for the home
construction in accordance with the schedule set forth in the orignal contract, up until
mid-February. A final invoice was presented on February 13,2006 (plaintiff's exhibit 8)
requesting payment of $27,850, whch is the completion payment in accordance with the
contract and change orders less certain allowances for flooring, lighting, vanity and
shelving whch had not been used. The defendant refused to pay this invoice and the
plaintiff filed a mechanic's lien (plaintiff's exhibit 2).
Discussion
After considering all of the evidence, including the findings set forth above, the
court has concluded that the evidence established that the parties entered into a
construction contract which called for performance witlun a fixed period of time. The
contract does not include all of the statutorily required elements, but substantially
complies with the statute and it has not been demonstrated that there was any harm to
either party as a result of the few missing elements. Therefore, the court concludes that
there was no violation of the Home Construction Act and no entitlement to attorney's
fees as the result of such violation.
The court further concludes that the contract was largely performed as called for
in the specifications and change orders, with the exception of certain items which were
not completed at the time the contractor was ordered off the job. The contract was
breached by the failure to complete the construction witlun the time set forth in the
contract. However, the delays were the results of actions by the plaintiff, actions by the defendant and elements of nature. The delays were temporary in nature due to
impracticability of performance or frustration, constituting an excuse for the delays. See
generally RESTATEMENT (SECOND) 9 269 (1981); Rockland Poultry Co. v. OF CONTRACTS,
Anderson, 148 Me. 211,216,91 A.2d 478 (1952). As a result, no damages are awarded for
this breach.
The plaintiff is in breach of portions of the contract including the warranty
provisions as the result of substandard performance in certain aspects of the
construction. Further, there are certain portions of the work w h c h were not performed
due to early termination. Since the plaintiff substantially performed on the contract, he
will recover the value of his work under the contract, reduced by credit for damages
due to these unperformed or substandard performed portions of the construction. The
court finds the offset amount to be $9,076.10.
The defendant was in breach of the contract by failure to pay the last payment for
the work performed. The court accepts the plaintiff's base damages of $27,850, as set
forth in the mechanic's lien, with an offset for the unperformed and substandard
portions.
Since there was no violation of the Home Construction Act, no attorney's fees are
awarded.
Based on the foregoing, the entry will be:
Judgment for the plaintiff, as reduced by damages for the defendant on his counterclaim, in the amount of $18,773.90 plus costs and interest. T h s judgment establishes the final amount for purposes of execution of the mechanic's lien, pursuant to 10 M.R.S. 9 3258.
f Dated: January 5 ,2007 S.
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STATE OF MAINE DISTRICT COURT LOC: AUGUSTA KENNEBEC, ss. DOCKET NO. AUGDC-RE-06-024 - - - \- ,+. ), ,
NATHAN DANIS, d / b / a D & D BUILDERS,
Plaintiff
v. JUDGMENT
GARY PRATT,
Defendant
This matter came on for trial before the court, without jury, on the plaintiff's
complaints and defendant's counterclaims. All the testimonial and other evidence has
been fully considered by the court, and after that consideration, judgment will be
entered for the plaintiff and the defendant in part..
Facts
This controversy arises out of a written contract between the parties by which the
plaintiff was to build a house for the defendant and the defendant was to pay for the
work and materials. The contract was in writing and signed by the parties, and consists
of the single package of materials including the proposal, building specifications and
construction agreement, which is plaintiff's Exhbit 1. This contract would be subject to
the requirements of 10 M.R.S.A. 5 1486-1490, as a home construction contract. The
contract includes the name of the parties and the address and phone number for the
contractor, the location of the work, the work dates, the contract price and method of
payment, description of the work, and provision for change orders. Although the
contract does not have a provision concerning dispute resolution or the specific warranty language set forth in the statute, it does mention a one-year warranty on workrnanshp and a four-year warranty n roof and chimney leaks (Plaintiff's Exhbit 7
change order). Therefore, the contract was in substantial compliance with the
requirements of the statute and there were no violations of the chapter.
Of particular relevance to the present litigation is that portion of the proposal
incorporated within the contract whch reads, "Start date upon signing of contract and
completed w i h n 90 days." The proposal was accepted and the agreement signed,
creating the contract, on June 15, 2005, meaning a completion date of approximately
September 15,2005, per the contract. In fact, the house construction was almost, but not
quite complete, when the defendant ordered the plaintiff off of the job on February 16,
2006. The plaintiff explains h s failure to complete the construction witlun the contract
period by delays caused by the need to blast ledge for the foundation (one month),
additional work required by the change orders and by other changes in the scope of
work (e.g., change to tongue and groove paneling for most of the interior and change in
the type of siding), the rainy weather and defendant's general interferrence. From h s
perspective, the defendant argues that the plaintiff's failure to meet the 90-day deadline
was because he spent time working on other projects. The court finds that both the
plaintiff and the defendant had a role in the failure to meet the construction deadline.
Following the plaintiff's departure from the work site, the defendant had some of
the remaining work completed. He also had other remedial work done or obtained an
estimate for such work for aspects of the construction which he believed were
substandard. Those expenses included a broken granite lentil over the fireplace (which
the court finds is not the plaintiff's responsibility), redoing parts of the drywall, redoing
the paneling on the interior and siding on the exterior, rebuilding the fireplace and new
supports for the exterior deck. Other completion items included sealing and caullung
the bathroom, installation of the lutchen countertops, installation of dead bolts and doorknobs and cleaning and sealing of the deck. These completion items and remedial
repairs, plus the defendant's expenses for remaining in his previous housing and loss of
rent for that housing, are included in the defendant's counterclaim totaling $52,486.66
according to his testimony.
The defendant had made periodic payments to the plaintiff for the home
construction in accordance with the schedule set forth in the orignal contract, up until
mid-February. A final invoice was presented on February 13,2006 (plaintiff's exhibit 8)
requesting payment of $27,850, whch is the completion payment in accordance with the
contract and change orders less certain allowances for flooring, lighting, vanity and
shelving whch had not been used. The defendant refused to pay this invoice and the
plaintiff filed a mechanic's lien (plaintiff's exhibit 2).
Discussion
After considering all of the evidence, including the findings set forth above, the
court has concluded that the evidence established that the parties entered into a
construction contract which called for performance witlun a fixed period of time. The
contract does not include all of the statutorily required elements, but substantially
complies with the statute and it has not been demonstrated that there was any harm to
either party as a result of the few missing elements. Therefore, the court concludes that
there was no violation of the Home Construction Act and no entitlement to attorney's
fees as the result of such violation.
The court further concludes that the contract was largely performed as called for
in the specifications and change orders, with the exception of certain items which were
not completed at the time the contractor was ordered off the job. The contract was
breached by the failure to complete the construction witlun the time set forth in the
contract. However, the delays were the results of actions by the plaintiff, actions by the defendant and elements of nature. The delays were temporary in nature due to
impracticability of performance or frustration, constituting an excuse for the delays. See
generally RESTATEMENT (SECOND) 9 269 (1981); Rockland Poultry Co. v. OF CONTRACTS,
Anderson, 148 Me. 211,216,91 A.2d 478 (1952). As a result, no damages are awarded for
this breach.
The plaintiff is in breach of portions of the contract including the warranty
provisions as the result of substandard performance in certain aspects of the
construction. Further, there are certain portions of the work w h c h were not performed
due to early termination. Since the plaintiff substantially performed on the contract, he
will recover the value of his work under the contract, reduced by credit for damages
due to these unperformed or substandard performed portions of the construction. The
court finds the offset amount to be $9,076.10.
The defendant was in breach of the contract by failure to pay the last payment for
the work performed. The court accepts the plaintiff's base damages of $27,850, as set
forth in the mechanic's lien, with an offset for the unperformed and substandard
portions.
Since there was no violation of the Home Construction Act, no attorney's fees are
awarded.
Based on the foregoing, the entry will be:
Judgment for the plaintiff, as reduced by damages for the defendant on his counterclaim, in the amount of $18,773.90 plus costs and interest. T h s judgment establishes the final amount for purposes of execution of the mechanic's lien, pursuant to 10 M.R.S. 9 3258.
f Dated: January 5 ,2007 S. Kirk Studstrup ' Justice, Superior Court NATHAN DANIS - PLAINTIFF DISTRICT COURT D/B/A D AND D BUILDERS 7 COURT STREET AUGUSTA RANDOLPH ME 04346 Docket No AUGDC-RE-2006-00024 Attorney for: NATHAN DANIS MARK SUSI - RETAINED 03/27/2006 LAW OFFICE OF MARK SUSI DOCKET RECORD 193 WATER STREET HALLOWELL ME 04347
VS GARY PRATT - DEFENDANT 40 COLLINS ROAD CHELSEA ME 04330 Attorney for: GARY PRATT DAVID J VAN DYKE - RETAINED HORNBLOWER LYNCH RABASCO & VANDYKE 261 ASH STREET PO BOX 116 LEWISTON ME 04243-0116
Filing Document: COMPLAINT Minor Case Type: MECHANICS LIENS Filing Date: 03/27/2006
Docket Events: 03/27/2006 FILING DOCUMENT - COMPLAINT FILED ON 03/27/2006
03/27/2006 Party (s): NATHAN DANIS ATTORNEY - RETAINED ENTERED ON 03/27/2006 Plaintiff's Attorney: MARK SUSI
03/27/2006 CERTIFY/NOTIFICATION - CLERK CERTIFICATE ISSUED ON 03/27/2006 PENNY MOORE , ASSISTANT CLERK-E ORIGINAL TO REGISTRY WITH CHECK FROM ATTY SUSI, COPY IN FILE
04/14/2006 Party (s): GARY PRATT ATTORNEY - RETAINED ENTERED ON 04/07/2006 Defendant's Attorney: DAVID J VAN DYKE
04/14/2006 Party(s): GARY PRATT RESPONSIVE PLEADING - ANSWER & COUNTERCLAIM FILED ON 04/07/2006 Defendant's Attorney: DAVID J VAN DYKE
04/14/2006 Party(s): GARY PRATT SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 04/01/2006
04/14/2006 Party (s): NATHAN DANIS RESPONSIVE PLEADING - REPLY/ANSWER TO COUNTERCLAIM FILED ON 04/12/2006 Plaintiff's Attorney: MARK SUSI
04/19/2006 ORDER - SCHEDULING ORDER ENTERED ON 04/14/2006 RAE ANN FRENCH , JUDGE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO ATTY SUSI AND ATTY VAN DYKE
Page 1 of 3 Printed on: 01/26/2007 AUGDC-RE-2006-00024 DOCKET RECORD
04/19/2006 DISCOVERY FILING'- DISCOVERY DEADLINE ENTERED ON 07/03/2006
08/10/2006 HEARING - TRIAL MANAGEMENT CONFERENCE SCHEDULED FOR 10/12/2006 @ 9:15 in Room No. 2
08/10/2006 HEARING - TRIAL MANAGEMENT CONFERENCE NOTICE SENT ON 08/10/2006 ATTY SUSI AND ATTY VANDYKE
10/17/2006 HEARING - TRIAL MANAGEMENT CONFERENCE HELD ON 10/12/2006 PATRICIA WORTH , JUDGE
10/17/2006 ORDER - PRETRIAL/STATUS ENTERED ON 10/12/2006 PATRICIA WORTH , JUDGE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO ATTY SUSI AND ATTY VAN DYKE
10/17/2006 ORDER - ORDER OF ASSIGNMENT ENTERED ON 10/12/2006 PATRICIA WORTH , JUDGE AUGSC
10/17/2006 Party(s) : NATHAN DANIS OTHER FILING - WITNESS & EXHIBIT LIST FILED ON 10/12/2006 Plaintiff's Attorney: MARK SUSI
10/17/2006 Party(s): GARY PRATT OTHER FILING - WITNESS & EXHIBIT LIST FILED ON 10/16/2006 Defendant's Attorney: DAVID J VAN DYKE
10/17/2006 ORDER - ORDER OF ASSIGNMENT SENT ON 10/17/2006 AUGSC
12/07/2006 TRIAL - TRAILING LIST SCHEDULED FOR 01/08/2007 1/8/07-3/1/07
01/08/2007 TRIAL - BENCH SCHEDULE OTHER COURT ON 01/18/2007 @ 9:00 S KIRK STUDSTRUP , JUSTICE AUGSC
01/08/2007 TRIAL - BENCH NOTICE SENT ON 01/08/2007
01/19/2007 TRIAL - BENCH HELD ON 01/18/2007 S KIRK STUDSTRUP , JUSTICE Defendant's Attorney: DAVID J VAN DYKE Plaintiff's Attorney: MARK SUSI Reporter: TAMMY DROUIN PLF CALLED TED MCLAUGHLIN, DONALD POULIN, DANIEL KAPLAN, JAMES WEYMOUTH, NATHAN DANIS AS WITNESSES. DEFT CALLED STEVE WELTON, MATT MCCRIMMON, MIKE HARRIS, GARY PRATT, TAMMY WEYMOUTH AS WITNESSES. PLF CALLED NATHAN DANIS AND DANIEL KAPLAN AS REBUTTAL WITNESSES. TAKEN UNDER ADVISESMENT.
01/26/2007 FINDING - JUDGMENT DETERMINATION ENTERED ON 01/25/2007 S KIRK STUDSTRUP , JUSTICE JUDGMENT FOR THE PLAINTIFF, AS REDUCED BY DAMAGES FOR THE DEFENDANT ON HIS COUNTERCLAIM, IN THE AMOUNT OF $18,773.90 PLUS COSTS AND INTEREST. THIS JUDGMENT ESTABLISHES THE FINAL AMOUNT FOR PURPOSES OF EXECUTION OF THE MECHANIC'S LIEN, PURSUANT TO 10 M.R.S.3258 Page 2 of 3 Printed on: 01/26/2007 AUGDC-RE-2006-00024 DOCKET RECORD
COPIES MAILED TO ATTYS. OF RECORD.
ORDER - COURT JUDGMENT ENTERED ON 01/25/2007 S KIRK STUDSTRUP , JUSTICE JUDGMENT FOR THE PLAINTIFF, AS REDUCED BY DAMAGES FOR THE DEFENDANT ON HIS COUNTERCLAIM, IN THE AMOUNT OF $18,773.90 PLUS COSTS AND INTEREST. THIS JUDGMENT ESTABLISHES THE FINAL AMOUNT FOR PURPOSES OF EXECUTION OF THE MECHANIC'S LIEN, PURSUANT TO 10 M.R.S.3258 COPIES MAILED TO ATTYS. OF RECORD. Judgment entered for NATHAN DANIS and against GARY PRATT in the amount of $18773.90.
01/26/2007 FINDING - FINAL JUDGMENT CASE CLOSED ON 01/26/2007
01/26/2007 ORDER - COURT JUDGMENT COPY TO REPOSITORIES ON 01/26/2007
A TRUE COPY ATTEST : Clerk
Page 3 of 3 Printed on: 01/26/2007