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Stratton v. McConnell Landscape and Construction, LLC

Court of Common Pleas of Delaware, New Castle

December 29, 2017

CAROL STRATTON and M. LISA ATTEBERRY, Plaintiffs,
v.
MCCONNELL LANDSCAPE AND CONSTRUCTION, LLC and BELAIR ROAD SUPPLY OP DELAWARE, LLC Defendants.

          Submitted: November 21, 2017

          Elwood T. Eveland, Jr., Esquire The Eveland Law Firm Attorney for Plaintiffs.

          Richard E, Bed, Jr., Esquire Berl & Feinberg, LLP Dartmouth Business Attorney for Defendants.

          ORDER ON DEFENDANT'S MOTION FOR REARGUMENT

          Alex J. Smalls Chief Judge.

         This matter is back before the Court on Defendant's Motion for Reargument pursuant to Court of Common Pleas Civil Rule 59(e). The provisions of the rule provide that such motions shall be filed within five (5) days after the filing of the Court's opinion on decision.[1]This motion is timely. The purpose of the motion is to allow the trial court an opportunity to correct errors prior to appeal.[2] "New arguments, or arguments that could have been raised prior to the Court's decision, cannot be raised in a Motion for Reargument."[3] A Motion for Reargument is limited to "reconsideration by the Trial Court of its findings of fact, conclusions of law, or judgment."[4] "A Motion for Reargument is granted only if the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision.'"[5] "A party seeking to have the trial court reconsider [an] earlier ruling must demonstrate newly discovered evidence, a change in the law, or manifest injustice."[6] "A Motion for Reargument will generally be denied absent abuse of discretion by the trial court."[7]

         This case arises in the context of a breach of contract where compensation is sought for damages to Plaintiffs property during the construction of a rear patio. The complaint alleges that Carol Stratton and Lisa Atteberry ("Plaintiffs") entered into a contract with McConnell Landscape and Construction, LLC ("McConnell") to build an outdoor backyard patio for their vacation home, McConnell subcontracted with Bclair Road Supply of Delaware, LLC ("Bclair") (collectively, "Defendants") for materials. During construction, damages were sustained to Plaintiffs lawn and driveway. Following a trial, on August 31, 2017, the Court issued its opinion on November 7, 2017, concluding Defendants damaged Plaintiffs property and were ordered to pay $4, 677.50, for the damage to the driveway; $3, 309, 00 for the lawn; costs of proceedings, and post-judgment interest until paid.

         Based upon the conclusions below, I find no basis for reargument therefore, the Motion is DENIED,

         DISCUSSION

         Defendant raises six arguments in support of his Motion which will be considered seriatim, First, Defendant argues that the judgment entered by the court against McConnell Landscaping and Construction, in the amount of $3, 309.00, was based upon an "estimate" which it objected to at trial.[8] Defendant's objection was based on hearsay because no witness was introduced to authenticate the document. Plaintiffs response is in two parts to this position. First, that Plaintiffs testimony is permissive because she was testifying regarding an estimate she obtained to repair the damage and Defendant had the opportunity to cross examine her on the issue. Secondly, Plaintiff argues that Delaware case law permits an owner to testify regarding the value of damage to her property.

         "Since 1960, Delaware has recognized a property owner's right to give an opinion as to the value of real estate."[9] "Reasonable estimates are permissible even if they lack mathematical certainty if the Court is given a reasonable basis to make a responsible estimate of damages."[10] "Thus, a repair estimate may be used to measure damages."[11] Delaware Rules of Evidence Rule 701 governs the testimony of a lay witness and provides:

"If the witness is not testifying as an expert, the witness testimony or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness testimony or the determination of fact in issue and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702."[12]

         In the case at hand, Plaintiff testified that they received estimates to repair the lawn from Wharton's Landscaping in the amount of 13, 309.00 and moved to admit the estimate as "Exhibit 5, " Defendant objected to the estimate document on hearsay grounds since there was no one from Wharton's Landscaping to authenticate it. I find that it is reasonable for Plaintiff to testify to estimates she received in correcting the damages incurred by Defendants, not. for the truth therein, but to the extent of the damage sustained. These estimates can be used in conjunction with Plaintiffs testimony to support a judgment of damages.

         Second, Defendants argue that the estimates regarding the driveway damage was also objected to on the basis of hearsay. Defendants objected to these Exhibits on grounds there were no witness to authenticate, the documents. The Court permitted Plaintiff to testify to the damages using the Exhibits for limited purposes to show Plaintiff sought and received estimates to repair her driveway.[13] Defendant argues that the Court admitted the driveway estimate documents only to "show that the Defendant's had not solicited or received their own estimates" and they were not being admitted for the purpose of proving damages.[14]During trial, Plaintiff testified that the estimates were for a temporary fix. Furthermore, Plaintiff testified she paid $750 to "treat and seal the driveway's damaged areas."[15] These documents with Plaintiffs testimony arc sufficient for the Court to find damages. Plaintiff testified that they received estimates to repair the lawn from Wharton's Landscaping in the amount of $3, 309.00, an estimate of $3, 927.50, to repair the driveway and an estimate of $750 to treat and seal the driveway which coupled with receipts of estimates, is proof of damages to support the Court's conclusion.

         Third and Fourth arguments of Defendants state that the Court's analysis recognizes that in order to show a breach of an implied warranty, a Plaintiff must prove Defendants failure to display the degree of skill or knowledge possessed by a member of the profession or trade at issue. Defendant's then argue that at trial, there was no testimony, expert or otherwise, offered by Plaintiff to identify the applicable ...


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