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Lee-Scott v. Shute

Court of Common Pleas of Delaware, New Castle

January 30, 2017

JAMES SHUTE, Defendant.

          Submitted: January 3, 2017

          Angela Lee-Scott Pro se Plaintiff

          James Shute Pro se Defendant


          WELCH, J.

         This case involves the breach of a contract arising from Defendant's promise to construct a front walkway and backyard patio according to Plaintiffs specifications. Both parties appeared for trial before the Court on Tuesday, January 3, 2017. The Court reserved its decision. This is the Court's Final Memorandum Opinion and Order after consideration of the pleadings, oral and documentary evidence submitted at trial, arguments made at trial, and the applicable law. For the following reasons, the Court enters judgment in favor of Plaintiff for $7, 187.

         I. Procedural Posture

         On May 24, 2016, Angela Lee-Scott ("Plaintiff) filed a Complaint in this Court against James Shute ("Defendant"), alleging that Defendant failed to properly construct a front walkway and backyard patio according to agreed upon specifications. On June 3, 2016, Defendant was served with the Summons and Complaint at his home address of 261 Emma Way, Newark, Delaware 19702-4807.[1] On June 17, 2016, Defendant filed an Answer in which he asserted that the patio was built to Plaintiffs specifications, and noted that Plaintiff still owed him $3, 500 for his labor.

         On August 2, 2016, Defendant filed his Civil Case Management Order, denying any knowledge of Plaintiffs claims while listing exhibits he anticipated producing that supported his position. Plaintiff filed her Civil Case Management Order on August 4, 2016, re-alleging her claims and cause of action. She stated that she had paid Defendant in installments of $7, 082 and $6, 000 towards the completion of her front walkway and backyard patio, paying a second company to make the necessary repairs to Defendant's work when he refused to rectify his poor workmanship. Plaintiff demanded reimbursement of $23, 262.00. On August 15, 2016, a pre-trial conference was held before Judge Danberg, and civil trial was scheduled for January 3, 2017. Both parties appeared for Trial.

         II. Facts

         Based on the testimony and evidence presented at trial, the Court finds the relevant facts to be as follows.

         On November 16, 2015, Plaintiff and Defendant formed a contract.[2] Defendant, doing business as Shute Masonry, [3] agreed to build Plaintiff a front walkway for $2, 300 and a backyard patio for $14, 782-for a total price of $17, 082.[4] The project was based on specifications that Plaintiff requested and Defendant drafted; the specifications were included in Plaintiffs Architectural Request Form which was submitted to her homeowners association on September 18, 2015.[5] Saint Annes Home Owners Association approved the project on October 5, 2015, allowing a "new paver walkway from [Plaintiffs] existing porch to the sidewalk with two 4' pillars, to overlay all existing concrete walkways and front porch with pavers and to install a 26' x 10' paver patio with steps to a lower 16' x 10' patio with two pillars."[6]

         Defendant agreed to begin construction on the front walkway on Wednesday, November 18, 2015, at 7:00 a.m. after Plaintiff made an initial down payment of $7, 082.[7] Because Defendant had not secured the appropriate permits, he was unable to start Wednesday morning. Defendant and several of Defendant's workers began later that afternoon by tearing down Plaintiffs backyard stairs. Defendant informed Plaintiff that the project would take two weeks to complete.

         Approximately three weeks later, on Wednesday, December 9, 2015, Defendant requested a second payment of $6, 000 from Plaintiff for the work performed, which she immediately paid.[8] After this second payment, Defendant's workdays became infrequent and sporadic. When present, he would work approximately four hours in the morning and then leave the project site for the remainder of the day. Additionally, Plaintiff could no longer reach Defendant directly. Plaintiff was required to communicate with Defendant's business manager whose communications did not align with Defendant's original assertions. On February 1, 2016, Defendant informed Plaintiff that he would be further delayed in completing the project.

         On February 4, 2016, Defendant promised to finish the project the next day. Even on warm February days, Plaintiff was unable to reach Defendant. However, on February 17, 2016, Defendant requested $3, 000 out of Plaintiffs remaining balance of $3, 507 before he would clean up, sand the masonry pavers and re-seed the backyard, which he claimed could not occur for "at least a couple of weeks" because of the freezing temperatures.[9] Plaintiff refused to pay Defendant the remaining balance until he completed the project. She noted that the work would have been completed if he had consistently worked on the project from the beginning, as he originally promised. She stated that she would pay him the full amount of $3, 507 when he finished the project. Defendant reluctantly agreed.

         In the interim, Plaintiff was again unable to reach Defendant, so she asked another contractor to inspect her backyard patio because the sand was sinking out from underneath the patio, the steps were loose, and there were "lumps" in the patio. On Sunday, February 21, 2016, Plaintiff contacted Defendant with numerous complaints about his workmanship and requested he promptly fix them.[10] An inspection of the patio indicated that the pier caps were missing, pillars were not cemented, the left side of patio was not level, an incorrect sand-type was used, gaps existed between the backyard patio and the house, the lower patio was sinking, masonry pavers were loose and cracked on the lower patio, the patio was not furnished with a concrete border, steps were incorrectly cemented, there were gaps between steps, and Plaintiff had failed to cover the outside vent with a concrete covering.[11] Plaintiff informed Defendant on Tuesday, March 1, 2016, that if she did not hear from him in two days, then he would forfeit the final payment of $3, 507 and she would hire a new contractor to finish the work. On March 3, 2016, Plaintiff informed Defendant by email and certified mail that he had until Thursday, March 10, 2016, to contact her about making the appropriate repairs.[12]

         In April, Plaintiff hired Page Precision Cuts ("Precision Cuts") to fix Defendant's mistakes. Zachary Page ("Page") oversaw the repairs to Plaintiffs backyard patio, which took approximately two weeks. On April 20, 2016, Precision Cuts billed Plaintiff for $7, 187 based on various repairs to her backyard patio that were required.[13] These repairs included: (1) replacing the patio's concrete wall as the barrier that was installed was not rated for the appropriate weight, (2) relaying the top tier masonry pavers and fixing various problems with gaps between pavers and incorrectly sized pavers, (3) disassembling and reassembling the patio steps because they were falling apart, (4) relaying the entire bottom tier of masonry pavers, (5) removing the sump pump drain from underneath the patio, and (6) laying sod in areas that Defendant damaged.[14] Likewise, certain backyard patio steps were so loose that the steps could be separated from the foundation by hand. Additionally, the lower patio masonry pavers that Defendant used were discontinued, requiring Page to use Precision Cuts' own pavers when repairing the patio from the water damage that resulted from Defendant's workmanship.

         III. Standard of Review

         In civil actions, such as breach of contract, the burden of proof is by a preponderance of the evidence.[15] "The side on which the greater weight of the evidence is found is the side on which the preponderance of the evidence exists."[16]

         As trier of fact, the Court is the sole judge of the credibility of each fact witness and any other documents submitted to the Court for consideration. If the Court finds that the evidence presented at trial contains conflicts, it is the Court's duty to reconcile these conflicts-if reasonably possible-in order to find congruity. If the Court is unable to harmonize the conflicting testimony, then the Court must determine which portions of the testimony deserve more weight in its final judgment. In ruling, the Court may consider the witnesses' demeanor, the fairness and descriptiveness of their testimony, their ability to personally witness or know the facts about which they testify, and any biases or interests they may have concerning the nature of the case.

         IV. The Law

         Under the Bootstrapping Doctrine, when a plaintiffs claim results from a breach of contract, the claimant must sue in contract.[17] In other words, Delaware law does not allow plaintiffs to attempt to satisfy the elements of a tort at trial while complaining of a contractual wrong.[18] For example, "[i]f a complaint alleges that 'the parties had a contract and [defendant] intended not to follow through with its obligations under the [contract] and nothing more, '" then plaintiff cannot also claim that defendant was negligent or perpetrated fraud under this contractual arrangement.[19] While the claimant is permitted to allege multiple causes of action, the non-contractual causes of action must be premised '"on conduct that is separate and distinct from the conduct constituting breach.'"[20]

         To prevail on a claim for breach of contract, the plaintiff must establish by a preponderance of the evidence that: (1) a contract existed between the parties; (2) the defendant breached his obligation imposed by the contract, and (3) plaintiff suffered damages as a result of the defendant's breach.[21]

         V. Discussion

         Preliminarily, the Court notes that it is cognizant of the deference afforded to pro se litigants. The Delaware Supreme Court recently reiterated that pro se litigants are afforded "some leniency in presenting their cases."[22] However, this leniency does not afford the pro se litigant the ability to skirt the rules of the court or bring the trial court's "administration of justice" to a screeching halt.[23] Thus, the pro se litigant is not afforded the indulgence to adversely "affect the substantive rights of the parties."[24] While Defendant is afforded leniency, "even a pro se litigant. . ., is required to make the 'fullest possible preparation of the case before trial.'"[25] Hence, Defendant's failure to prepare and present his case to this Court, despite the Court's multiple explanations regarding the proceedings, is not justified by his pro se status.[26]

         A. Contract Formation

         Neither party disputes that a contract was formed. In general, a contract is formed when one person ("offeror") makes an "offer" to a second person ("offeree") to enter into a contract and the offeree accepts, intending to be bound by the terms of the contract.[27] Matters concerning the formation of a contract are questions of fact.[28] Delaware law has defined a contract "as an agreement upon sufficient consideration to do or not to do a particular thing."[29] "Consideration is a bargained-for-exchange of legal value."[30] All contracts and contract modifications require consideration.[31] In order to create a contract, there must be "mutual assent to the terms of the agreement, also known as the meeting of the minds."[32] "Mutual assent requires an offer and an acceptance wherein 'all the essential terms of the proposal must have been reasonably certain and definite.'"[33] If the meeting of the minds does not occur, then the contract is unenforceable under Delaware law.[34]

         Clearly, Plaintiff and Defendant entered into a contract where Plaintiff made an offer to Defendant to pay him a total sum of $17, 082 for the construction of a front walkway and backyard patio with the appropriate masonry pavers.[35]Defendant accepted Plaintiffs offer-intending to be bound by Plaintiffs specifications-for consideration in the form of a promise to be paid in installments.[36] Defendant agreed to follow appropriate procedures and begin constructing the backyard patio on November 18, 2015.[37]

         B. Contractual Breaches

         "A breach of contract occurs by a party's non-performance, repudiation, or both."[38] Additionally, in order for the injured party's remaining obligations under the contract to cease, the breach must be "material."[39] The breach will be deemed material if it concerns the "'root' or 'essence' of the agreement between the parties, or [is] 'one which touches the fundamental purpose of the contract and defeats the object of the parties in entering into the contract.'"[40]

         1. First Breach - Defendant's Poor Workmanship

         Fundamentally, the law presumes that Defendant will construct the front walkway and backyard patio in a skillful and competent manner. Under the Implied Warranty of Good Quality and Workmanship, contractors involved in building homes or home additions must have the appropriate skill to "perform the work they offer ... 'in a skillful and workmanlike manner."' [41] This Court has held that a breach occurs if the contractor fails to '"display[] the degree of skill or knowledge normally possessed by members of their profession or trade in good standing in similar communities' in performing the work.'"[42]

         Even so, the implied warranty does not ensure "excellence, " but only "reasonable" workmanship.[43] Phrased differently, "[a] 'good faith attempt to perform a contract, even if the attempted performance does not precisely meet the contractual requirement, is considered complete if the substantial purpose of the contract is accomplished.'"[44] Indeed, if the construction is able to "fully accomplish" its intended purpose, [45] and a "reasonable person would be satisfied by it, the builder is entitled to recover despite the owner's dissatisfaction."[46]Importantly, the purchaser is not protected under this warranty if he was aware of the defect before purchasing the property, or-in the case of an addition-before he "accepted the work."[47]

         The Implied Warranty of Good Quality and Workmanship is applicable to Defendant. This Court has held that the implied warranty attaches to contracts between homeowner and contractor, [48] and the warranty has been applied to additions to the home.[49] Defendant's mistakes did not involve labyrinthine industry standards, [50] and were explained in detail by Plaintiffs witness, Zachary Page-an experienced contractor and landscaper-who credibly testified regarding Defendant's work-product deficiencies and Page's actions in repairing those deficiencies.[51] In summary, Defendant incorrectly secured the masonry pavers and, thus the pavers shifted, fell apart, and were unable to support the appropriate weight. Defendant also failed to level the upper patio and use the correct materials to prevent the lower patio from sinking.

         It is apparent that Defendant portrayed himself as a skilled mason, yet his workmanship was deficient and Plaintiff refused to accept his inferior work- product.[52] It is also clear that the latent defects of Defendant's workmanship were not apparent to Plaintiff since she testified that guests had fallen on more than one occasion while visiting her home because of the defects. Finally, Defendant's workmanship was patently unreasonable, as the addition could not satisfy its sole purpose by physically supporting Plaintiff or her guests.

         Even though Plaintiffs guests avoided physical harm, Plaintiff was unable to avoid monetary harm. Testimony that Plaintiff spent her savings, which she had reserved for her daughter's education, repairing Defendant's mistakes, is telling. Because Delaware law allows homeowners to hire a new contractor if the original contractor fails to correct defects in his workmanship prior to a proposed deadline, Plaintiff acted reasonably in setting a deadline for Defendant to complete the project.[53] Plaintiff allowed Defendant considerable time to complete the project and a reasonable deadline, which she later extended, to fix his substandard work-product. Because Defendant did not respond, and the non-breaching party has an obligation to mitigate damages, [54] Plaintiff hired Precision Cuts out of necessity.

         Defendant's poor workmanship deprived Plaintiff of the sole purpose of her backyard patio and, therefore, his conduct resulted in a material breach of the construction contract.[55]

         2. Second Breach - Defendant's Failure to Complete the Contract in a Reasonable Time

         Defendant's failure to complete the construction contract in a reasonable time was a material breach of the contract. "When time is of the essence in a contract, a failure to perform by the time stated [in the contract] is a material breach of the contract that will discharge the non-breaching party's obligation to perform its side of the bargain."[56] In the present case, the contract does not contain a time of the essence clause.

         "When a contract does not contain a time of the essence clause, courts look to the surrounding circumstances to determine whether the parties intended strict compliance with a particular timeframe."[57] This is because the requirement to perform with "reasonable expediency" is intrinsic to "every contract."[58] It is not apparent to the Court that Defendant ...

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