Submitted: June 13, 2018
M. Stevens, Esq., Attorney for Plaintiff.
William B. Wilgus, Esq., Attorney for Defendant.
DECISION AFTER TRIAL
ROSEMARY BETTS BEAUREGARD, JUDGE
a breach of contract action involving the allegedly
unworkmanlike construction of a pole building. The Court held
a bench trial on June 13, 2018, and at the close of trial
testimony and exhibits presented at trial establish the
following. From 2007 to 2012, Plaintiff Jacqueline Channels
owned and operated a hair salon in Millsboro, Delaware. In
December 2012, Ms. Channels closed the business, intending to
operate a salon out of her home in Millsboro.
furtherance of her intention, Ms. Channels contacted Sussex
County, received permission to operate a salon out of her
home, and began looking for a contractor to build a structure
where she would operate her salon. First, Ms. Channels
contacted Delmarva Pole Buildings, but the price was too
high. Some time later, Ms. Channels saw a sign in a yard for
Deshields Construction, the business name used by Defendant
Between Ms. Channels and Mr. Deshields
Channels testified that she was not certain regarding when
she first contacted Mr. Deshields, but it was in 2013,
possibly June. Ms. Channels and Mr. Deshields spoke twice on
the telephone prior to meeting in person. The content of the
parties' conversations, both on the telephone and in
person, is extrinsic evidence that forms the basis of Ms.
Channels' argument that Mr. Deshields agreed to build Ms.
Channels a salon and, therefore, the parties' written
agreement should be read in that light.
to Ms. Channels, she informed Mr. Deshields more than once,
first during their telephone conversations and later when
they met in person, that she wanted to operate a salon out of
her home and she wanted to know whether Mr. Deshields could
build her a salon. Ms. Channels testified that Mr. Deshields
affirmed that he would build her a salon. Inez Davis, Ms.
Channels' mother, also testified that Mr. Deshields
affirmed to her after construction began that he would build
Ms. Channels a salon.
Deshields testified that he only builds pole buildings, and
although he was aware that Ms. Channels wanted to operate a
salon out of the structure she wanted built, Mr. Deshields
testified that he did not agree to build Ms. Channels a
salon. According to Mr. Deshields, Ms. Channels would finish
turning the pole building he would build into a salon some
time in the future, i.e. after Mr. Deshields finished
construction of the pole building. As described by Mr.
Deshields, the process of turning a pole building into a
salon would require substantial additional work beyond the
construction of a pole building, such as the installation of
insulation, interior wall surfaces, and electrical wiring.
Ms. Channels and Mr. Deshields met in person, Mr. Deshields
showed Ms. Channels his advertisement in the Sussex Guide as
an example of the kind of buildings he constructs. Mr.
Deshields identified Defendant's Exhibit 1 as his
advertisement in the Sussex Guide. The advertisement
prominently features the text "DESHIELDS POLE
BUILDINGS" and shows pictures of the exteriors of pole
buildings. The pictures are of various sizes, colors, and
types of trim, but almost all the pictured pole buildings
have garage or barn doors in addition to typical residential
Channels testified that Mr. Deshields showed her an
advertisement for Deshields Construction, but she denied ever
seeing Defendant's Exhibit 1. Nevertheless, Ms. Channels
testified that the advertisement Mr. Deshields did show her
pictured a garage. In relation to the advertisement, Ms.
Channels testified that she informed Mr. Deshields she did
not want a garage and that Mr. Deshields affirmed he could
build her a salon.
parties did not sign a contract during this first in-person
November 2013, Ms. Channels contacted Mr. Deshields again to
move forward with the project, and on November 14, 2013, Mr.
Deshields again came to Ms. Channels' home. Mr. Deshields
brought with him the form contract used by him for all of his
form contract is a single page and states prominently in bold
"CONTRACT TO PERFORM LABOR AND MATERIALS NECESSARY FOR
COMPLETION OF POLE BUILDING." The form contract contains
spaces to fill out the size of the pole building and the
payment schedule for the project. Underneath a specifications
heading, the form contract sets forth specifications for the
pole building in a series of boxes. Some of the
specifications have options (e.g. a 4-inch or 6-inch concrete
pad), and some of the specifications are set (e.g. the pole
building will have 29-gauge metal walls).
Deshields went over the form contract with Ms. Channels, and
Mr. Deshields and Ms. Channels filled out the form, handwrote
certain terms, and signed it (the
"Contract"). Ms. Channels filled in her name, address,
and phone number and wrote the term "buying own door for
back" on the Contract. Mr. Deshields filled out the
remainder of the form and wrote the other handwritten terms
in the Contract.
unambiguous terms of the Contract provide that: Mr. Deshields
will build Ms. Channels a 30x40 foot pole building (the
"Pole Building"); and Ms. Channels will pay Mr.
Deshields $18, 100, consisting of a $5, 000 deposit, $9, 000
after the trusses are set, and a $4, 100 balance due on
completion. As previously explained, the specifications for
the Pole Building are set forth in a series of boxes. These
boxes contain minimal text, rather than full sentences, and
Mr. Deshields testified without objection as to the precise
meaning of these condensed terms.
to the technical specifications for the Pole Building, the
handwritten terms are not written out in full sentences, and
except for the handwritten term "insulat [sic]
WALLS," there is no particularized dispute regarding the
meaning of the handwritten terms. For example, there is no
dispute that the partially illegible handwritten term located
on the right just above the specifications boxes-which might
read "bReezeway incl."-provides that Mr.
Deshields' duties under the Contract include construction
of a breezeway connecting the Pole Building to Ms.
Channels' house (the "Breezeway").
the "insulat[sic] WALLS" handwritten term, Mr.
Deshields testified that he wrote that on the Contract some
time during construction. According to Mr. Deshields, Ms.
Channels informed him during construction that she expected
insulation in the walls of the Pole Building. One of the
Contract's specifications boxes states
"INSULATION YES OR NO." The
"YES" is circled and handwritten next to the box is
"R." Mr. Deshields testified that he informed Ms.
Channels that, while there would be insulation in the roof,
under his understanding of the terms of the Contract there
would not be any insulation in the walls of the Pole
Building. Notwithstanding his understanding of the Contract
requirements, Mr. Deshields agreed to install insulation in
the walls and wrote "insulat[sic] WALLS" on the
Contract to reflect his agreement. Mr. Deshields testified
that this agreement did not include the installation of dry
wall in the Pole Building.
Channels testified that Mr. Deshields wrote
"insulat[sic] WALLS" on the Contract at the time it
was signed but did not testify regarding the particular
meaning of that term, other than to testify that it was her
expectation that the Pole Building would have insulation and
an interior wall surface, such as dry wall. Ms. Channels did
not testify that Mr. Deshields specifically represented that
the walls would have an interior surface or finish.
the Contract provides for a December 6, 2013 start date, Mr.
Deshields delayed the start of construction-with Ms.
Channels' consent-until the beginning of April 2014 due
to inclement weather. Initially, Ms. Channels felt that the
construction was proceeding pretty well. Mr. Deshields came
to property with four to five workers and work proceeded. Ms.
Channels became concerned regarding the construction after
the Sussex County inspector, William Godwin, Jr., came out to
end of April or the beginning of May 2014, Mr. Godwin, an
employee of the Sussex County Assessment Department, came to
Ms. Channels' house to perform a "final"
inspection on the Pole Building. Immediately upon arrival,
Mr. Godwin noticed a problem. The permit application
submitted by Mr. Deshields to Sussex County listed the
proposed use of the building as a "detached
garage." Because the Pole Building does not have a
garage door and, therefore, did not appear to be a garage,
Mr. Godwin asked both Ms. Channels and Mr. Deshields what the
actual intended use for the building was. Ms. Channels
informed Mr. Godwin that she intended to use the Pole
Building as a salon, and Mr. Godwin instructed Ms. Channels
that a salon permit would require a detailed scale drawing of
the proposed salon building, including the placement of hair
dryers, sinks, cutting chairs, etc.
response to his directions, Mr. Godwin testified that Mr.
Deshields expressed his willingness to do whatever was
necessary to complete the project, and a few weeks later, Ms.
Channels submitted prints to Sussex County detailing the
intended layout of the salon. Prior to her conversation with
Mr. Godwin, Ms. Channels was not aware that the permit Mr.