Naylor v. Cusson

2007 VT 108, 940 A.2d 717, 182 Vt. 627, 2007 Vt. 108
CourtSupreme Court of Vermont
DecidedSeptember 18, 2007
Docket06-134
StatusPublished
Cited by4 cases

This text of 2007 VT 108 (Naylor v. Cusson) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Naylor v. Cusson, 2007 VT 108, 940 A.2d 717, 182 Vt. 627, 2007 Vt. 108 (Vt. 2007).

Opinion

940 A.2d 717 (2007)
2007 VT 108

James A. NAYLOR d/b/a Naylor Construction
v.
Tammy J. CUSSON and Dorothy Ducharme.

No. 06-134.

Supreme Court of Vermont.

Motion for Reargument Denied October 17, 2007.
September 18, 2007.

*719 Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, Associate Justices.

ENTRY ORDER

¶ 1. Homeowners Tammy Cusson and Dorothy Ducharme appeal a superior court order granting a monetary award plus interest and `penalties to contractor James Naylor under the Prompt Payment Act, 9 V.S.A. §§ 4001-4009. Contractor replaced homeowners' foundation, but homeowners did not make the final payment for the work. We affirm the judgment of the superior court and remand for further proceedings with respect to attorney's fees.

¶ 2. After evaluating a site visit, testimony, and exhibits admitted at a two-day bench trial, the trial court found as follows. Contractor and homeowners first discussed plans to build a new cellar in December 2003. The parties signed a contract in early April 2004. Construction began in early June 2004, and work concluded in late July 2004. Prior to signing the contract, the parties discussed their. respective obligations and determined that contractor would perform only those items specified in the contract. In addition, the parties agreed that homeowners had specific responsibilities to address both before and after the work was completed, such as acquiring topsoil and performing finish grading and landscaping.[*] By the time of contractor's first day of work, however, homeowners had not completed a number of essential tasks. For example, because homeowners had not dismantled the deck, contractor had to dismantle it to proceed. Homeowners also made a major change in the design of the cellar after construction started. Contractor did not charge them more for the increased construction time that this change necessitated.

¶ 3. The contract stipulated that one third of contractor's compensation should be paid at the outset, another third halfway through the project, and the final third upon completion. Homeowners paid the first and second installments, but not the third. As a result, contractor was unable to pay all of his subcontractors, and one of them filed suit. Over time, contractor paid that subcontractor the total amount due, as well as attorney's fees and costs. Contractor asserted a $25,000 mechanics lien against homeowners' property in September 2004 and brought suit against homeowners in February 2005, seeking a writ of attachment. The superior court approved a writ of attachment in the amount of $20,000 in March 2005. In his complaint, contractor sought enforcement of the mechanics lien. In total, he sought interest, penalties, costs, and attorney's fees under the Prompt Payment Act, 9 V.S.A. § 4007(c), in addition to the amount of the final installment.

¶ 4. Homeowners argued, inter alia, that they told contractor that he would be paid in full only if they were able to refinance their house based on the work he performed. Their main defense was that contractor did not complete all of the work *720 and that much of the work he performed was defective.

¶ 5. The superior court found not credible homeowners' claim that they would pay the last installment only if the refinancing was successful. With respect to homeowners' main defense, the court found that "[contractor] performed his work in a good and workmanlike manner and performed each and every element required to be performed by him as set forth in the contract between the parties." The court specifically found not credible the testimony of homeowners' expert, noting that in the expert's "entire career" he had "prepared only two estimates for jacking-up a house and . . . [had] never done this kind of work himself." Based on its findings, the court concluded that homeowners had breached the construction contract by failing to pay as required. Under the Prompt Payment Act, the court awarded contractor the amount of the last installment, consequential damages, penalties, interest, and attorney's fees.

¶ 6. In this Court, homeowners challenge the superior court's finding that contractor performed every element of the contract in a good and workmanlike manner. They do not challenge the court's determination that they owe the last installment under the contract, but argue that they did not violate the Prompt Payment Act and, therefore, do not owe interest, penalties, and attorney's fees under the Act. They argue that unless contractor completed every contract item, and did so in a workmanlike manner, they were not required to make the last payment, and the court erred in finding that they violated the Prompt Payment Act. Specifically, they argue that, as a matter of law, the contractor failed to fully and properly perform because he: (1) left a gap between the wooden planks of a lintel beneath their deck, (2) caused a loss of power in their garage, and (3) left bent aluminum flashing exposed on the outside of their house. In addition, they allege that contractor failed to perform the terms of the contract in a workmanlike manner and violated a provision of the contract by leaving the uppermost portion of the foundation's insulation visible above ground level.

¶ 7. On appeal "fflindings of fact shall not be set aside unless clearly erroneous. . . ." V.R.C.P. 52(a)(2). Furthermore, we view factual findings "in the light most favorable to the prevailing party below, disregarding the effect of modifying evidence." Jarvis v. Gillespie, 155 Vt. 633, 637, 587 A.2d 981, 984 (1991). Additionally, findings under review "will stand if there is reasonable and credible evidence to support them." Harlow v. Miller, 147 Vt. 480, 481-82, 520 A.2d 995, 997 (1986).

¶ 8. We address each of homeowners' four construction-related complaints in turn, but start by making general observations. We note that these issues were covered in the testimony of homeowners' expert, and, as stated above, the superior court did not accept the expert's opinion that contractor's performance was defective. We also note that the trial court found that "[homeowners] had received bids from other contractors who would have done more work but [they] rejected those offers because [contractor] agreed to do less work.-but charge them less for it." Ultimately, the parties entered into a written contract specifying the work contractor was to perform. See N. Aircraft., Inc. v. Reed, 154 Vt. 36, 44-45, 572 A.2d 1382, 1388 (1990) (stating legal presumption that parties "intend[] to be, bound by the plain and express language of their contracts as they are written").

¶ 9. With regard to the lintel beneath the deck, the contract does not specify that contractor was to reconstruct the deck. The trial court found that prior to *721 signing the contract the parties agreed that the deck was homeowners' responsibility. Thus, the trial court rejected homeowners' argument that "additional work should have been done by necessity of implication" since "the parties negotiated specific items in their agreement." We agree with that conclusion. See Medlar v. Aetna Ins. Co., 127 Vt. 337, 346, 248 A.2d 740

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Bluebook (online)
2007 VT 108, 940 A.2d 717, 182 Vt. 627, 2007 Vt. 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/naylor-v-cusson-vt-2007.