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R & L Irrigation Services, Inc. v. Chadwell

Court of Common Pleas of Delaware, Sussex

May 15, 2017


          Submitted March 15, 2017

          Patrick Scanlon, Esq., attorney for Plaintiff

          Timothy G. Willard, Esq., attorney for Defendant


          Kenneth S. Clark, Jr., Judge

         Robert Frost reminds us of the proverb, "Good fences make good neighbors."[1] In this case, a weak fence divided good friends. Consequently, the Court must resolve a dispute between Plaintiff R & L Irrigation Services Inc. ("R & L") and Defendant Michael Chadwell ("Chadwell") regarding the construction of and the payment for a fence. The Court held trial on March 15, 2017, and reserved decision.


         Prior to the subject dispute of this action, Chadwell and the owner of R & L, Mr. Richard Williams ("Williams") were friends as well as contractor and customer, socializing frequently. Chadwell utilized R & L for various landscaping and hardscaping projects at his home in Seaford. In the summer of 2013, Chadwell engaged R & L to build a fence around his backyard and pool. R & L provided an initial quote of $24, 000, and completed construction that summer. The fence consists of 29 four-and-one-half foot tall "dry stack"[2] stone columns connected by metal fencing.

         Chadwell made two $12, 000 payments to R & L, one in August 2013 and one on January 6, 2014. In November 2013, Williams sent Chadwell a final invoice for various add-ons in the amount of $9, 223.[3] Chadwell withheld this final payment because of the following claimed problems with the fence: Some of the metal fencing and posts were uneven, columns were leaning, the fence railings were separating from the mounting brackets, the electrical conduit was not capped, there were unfilled drill holes, screws were missing, and the gates did not align and close properly. Chadwell submitted in evidence two booklets of photographs depicting some of these concerns.[4] Williams and Chadwell testified that R & L made some repairs, including the adjustment of one column.

         In July 2014, Chadwell and his wife e-mailed Williams about the problems, stating they were unwilling to pay the outstanding balance until the fence was fixed. Williams testified he did not return to the property after receiving the e-mail.[5]

         On February 23, 2015, R & L filed this action. Thereafter it was brought to Chadwell's attention by Michael Walton ("Walton") and Brian Short ("Short"), both whom testified at trial, that the leaning columns and detached fence railings were attributable to problems with the columns' foundations. Walton, lead hardscaper for Barton's Landscaping, had occasion to examine the columns when Barton's installed lights on the columns. Short was selected by the parties as a "third party professional" to verify proper completion of work to be done on the fence as part of a failed mediation agreement to resolve the debt action.[6]

         In fall 2015, Walton used a four-foot level and tape measure to calculate whether the columns were off plumb and in which directions they leaned. Chadwell recorded Walton's measurements on a diagram.[7] According to their findings, only one out of 29 columns was plumb. Seventeen columns were off-centered by at least one inch in at least one direction; many were off-centered more than one inch and/or in more than one direction. Chadwell re-measured the columns in early 2016. Once again, only one out of 29 columns was plumb. Twenty-one columns were off-kilter by at least one inch.

         On February 16, 2016, Chadwell filed a counterclaim against R & L, alleging the fence was negligently constructed or that R & L breached the contract by producing an unworkmanlike fence.

         R & L seeks the outstanding balance of $9, 223.00, plus interest and costs. Chadwell paid $9, 223.00 into an escrow account held by Plaintiff's attorney, pending the outcome of this matter. Chadwell's counterclaim seeks $17, 620.00, the amount he alleges is necessary to repair the fence, as well as costs and attorney's fees. No repairs have been made on the fence to date; Chadwell's claimed damages are based upon an estimate from Barton's Landscaping to fully de-construct the fence and columns, pour concrete footers for the columns, and re-construct the fence from the same materials.


         The Court will first address Chadwell's counterclaim for breach of contract or negligent construction. Chadwell argues R & L breached the contract or negligently constructed the fence by improperly installing the columns and producing an unworkmanlike fence.

         To demonstrate breach of contract, Chadwell bears the burden of proving by a preponderance of the evidence that (1) a contract existed; (2) R & L breached an obligation imposed by the contract; and (3) there were resulting damages.[8] Delaware law implies into construction contracts a builder's warranty of good quality and workmanship:[9]

[When] a person holds himself out as a competent contractor to perform labor of a certain kind, the law presumes that he possesses the requisite skill to perform such labor in a proper manner, and implies as a part of his contract that the work shall be done in a skillful and workmanlike manner.[10]

         Work is deemed skillful and workmanlike when the contractor "displayed that degree of skill or knowledge normally possessed by members of [its] profession or trade in good standing in similar communities."[11] The work must be performed in a way that would satisfy a reasonable person.[12]

         Although a written contract was not entered into evidence, the parties acknowledge they entered into an agreement for R & L to construct a fence for Chadwell and perform the other services outlined in the add-on invoice, in consideration of Chadwell's payment of a minimum of $24, 000.00 for same, in accordance with Chadwell's longstanding history of hiring R & L to perform landscaping and hardscaping projects. A contract for services may be formed orally so long as there has been a meeting of the minds, or a "bargain in which there is manifestation of ...

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