Robert E. Tardiff, Inc. v. Twin Oaks Realty Trust

546 A.2d 1062, 130 N.H. 673, 1988 N.H. LEXIS 52
CourtSupreme Court of New Hampshire
DecidedJuly 25, 1988
DocketNo. 87-085
StatusPublished
Cited by16 cases

This text of 546 A.2d 1062 (Robert E. Tardiff, Inc. v. Twin Oaks Realty Trust) 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
Robert E. Tardiff, Inc. v. Twin Oaks Realty Trust, 546 A.2d 1062, 130 N.H. 673, 1988 N.H. LEXIS 52 (N.H. 1988).

Opinion

Johnson, J.

The defendants, Twin Oaks Realty Trust and its trustees, Michael P. Pandelena and Charles P. Garabedian (hereinafter Twin Oaks), appeal the decision of the Trial Court {Temple, J.), pursuant to the recommendation of a Master {R. Peter Shapiro, Esq.), denying them compensatory damages for the carrying costs attributable to the plaintiff’s tardiness in completing the construction of twenty-four condominium units owned by Twin Oaks. The master found that such costs were offset by the increase that had occurred in the fair market value of the condominiums between the completion date stipulated in the parties’ contract and the date on which they were actually completed. We reverse and remand.

On May 13, 1985, the plaintiff, Robert E. Tardiff, Inc. (Tardiff), and Twin Oaks entered into a contract for the construction of twenty-four condominium units in Rochester. This project represented the second phase of Cedar Brook Village Condominium Development. The contract called for the construction of four six-unit buildings at a base price of $876,000; it also provided that time is “of the essence” and that “[t]he Contractor shall exercise its best efforts to have the work completed by September 15, 1985.”

On September 15, 1985, Tardiff had not substantially performed its obligations under the contract, but continued to work on the project. Indeed, after a meeting with the Twin Oaks trustees late in October, 1985, Tardiff proposed a revised schedule for completion of the project that anticipated that two buildings would be finished by November 8, 1985, another by November 15, and the final one by December 6.

Tardiff did not meet these deadlines, yet it continued working into February, 1986, and the project remained unfinished on February 15. During a February 15 meeting at the construction site between Robert Tardiff, Michael Pandelena and Charles Garabedian, Pandelena and Garabedian informed Mr. Tardiff that they were not satisfied with the progress of his work. They also informed Mr. Tardiff that they were not satisfied with his [675]*675assurances that the project could be completed within two weeks, and that they planned to hire another contractor to complete the project.

In a letter dated February 24, 1986, Twin Oaks ordered Tardiff, Inc. to cease working on the project, claiming the contractor had neither seasonably completed its work nor satisfactorily performed the tasks which it had completed. Twin Oaks subsequently secured another contractor to correct and complete the work performed by Tardiff, and the substitute contractor completed the project in June, 1986.

In a letter dated February 27, 1986, Tardiff informed Twin Oaks that Tardiff was terminating the contract that the parties had signed in May, 1985, on the ground that Twin Oaks had not paid Tardiff for the work which the latter had performed pursuant to that contract. Tardiff then brought an action against Twin Oaks, seeking damages of $234,764.12 stemming from the alleged breach of contract by Twin Oaks.

Twin Oaks responded to Tardiff’s action by filing a counterclaim that alleged that Tardiff had breached the contract by failing to complete its work in a timely and proper fashion and asserted that Twin Oaks was entitled to recover for all the losses that it had incurred as a result of Tardiff’s breach. The counterclaim asserted that Twin Oaks was entitled to compensatory damages of $119,442.70, to cover the interest and other carrying costs incurred by Twin Oaks during the nine-month delay in the completion of the project that resulted from Tardiff’s breach.

The master found that Tardiff materially breached the contract by failing to perform its contractual obligations in a proper and timely fashion. The master did not find, although he was requested to do so by Tardiff, that Twin Oaks had breached the contract by failing to make timely payments to Tardiff. Nonetheless, the court below awarded Tardiff net damages of $114,719.59, a figure that was reached by deducting $86,391.32 from the balance otherwise due, representing the cost to Twin Oaks of completing the condominiums.

The court did not award Twin Oaks the compensatory damages that Twin Oaks sought, despite the court’s determination that: (1) the delay in the project’s completion was 60% attributable to Tardiff; and (2) the damages attributable to Tardiff were foreseeable and within the contemplation of the parties. The denial of compensatory damages was based on the fact that an increase had occurred in the fair market value of the condominium units [676]*676between September, 1985, and June, 1986. The court concluded that, because of this increase, Twin Oaks had not demonstrated that it had incurred a “loss of profit” as a result of the nine-month delay in the completion of the condominiums. Therefore, Twin Oaks had failed to meet its burden of proof regarding its entitlement to compensatory damages. Twin Oaks appeals the denial of compensatory damages and claims entitlement to 60% of its carrying costs of $119,442.70, or $71,665.62.

Twin Oaks argues that the master erred in concluding that a substantial increase in the market values and/or the prices of the units at Cedar Brook Village occurred between September, 1985, and June, 1986. We agree. Although the price of any unit that was contracted for prior to the completion of construction was set at $59,900, no unit was, in fact, sold at this preconstruction price. Upon the completion of the twenty-four units, which was originally scheduled for September, 1985, their prices would range from $64,900 to $69,900. Mr. Thibeault testified that he sold the first unit, which was under contract in the fall of 1985 but was not transferred until the fall of 1986, for $65,000.

Tardiff argues that the master’s finding that the units at Cedar Brook Village increased in value between September, 1985, and June, 1986, is supported by the evidence. Tardiff points out that Twin Oaks trustee Charles Garabedian testified that the prices of the various units increased from the original figure of $59,900 to $64,000, $69,000 and $73,000, respectively. Tardiff also points out that James Thibeault, the real estate agent for Twin Oaks, testified that the original, “preconstruction” price for each of the twenty-four units was $59,900, but that in September, 1985, the prices were raised to between $64,900 and $69,900, and that between September, 1985, and the spring of 1986, the prices were raised again, to as high as $74,900.

By December, 1986, when the trial was held, eight units remained for sale. Mr. Garabedian testified that the units in Buildings 1 and 2 were still priced at approximately $64,000, those in Building 10 were still priced in the $69,000 range, and those in Building 9 were priced in the $72,000 range. Indeed, the master’s report lists these prices as the prices which were current in the spring and early summer of 1986 when the parties concluded their business relationship.

Mr. Garabedian’s testimony and the master’s own report indicate that, instead of increasing substantially between September, 1985, and June, 1986, the prices of the Cedar Brook Village condomini[677]*677ums remained largely stable between those dates. The $59,900 figure is not reliable because it was a preconstruction price and, further, none of the units was sold at that price. In September, 1985, the prices were set between $64,900 and $69,900; the bulk of the units, including those in Buildings 1, 2, and 10, remained in that price range, not only in the spring and summer of 1986, but even in December of 1986.

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Cite This Page — Counsel Stack

Bluebook (online)
546 A.2d 1062, 130 N.H. 673, 1988 N.H. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-e-tardiff-inc-v-twin-oaks-realty-trust-nh-1988.