Copeland v. Sullivan, et al.
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IN THE SUPERIOR COURT OF THE STATE OF DELA WARE IN AND FOR SUSSEX COUNTY JOHN B. COPELAND, § § § § § § § § § Plaintiff, v. MART A SULL IVAN and RICHARD GOODWIN, Defendants. C.A. No. 03L-12-022-RFS ORDER Date Submitted: Date Submitted: Februar y 22, 2005 April 5, 2005 WHER EAS, plaintiff sued defendants for m oney allegedly due under a construction contact; WHEREA S, plaintiff sought a mechanic s lien against property where the construction occurred and for a personal judgment against defendants; WHEREA S, defendants denied responsibility and counterclaimed for damages allegedly resulting from defective work and other claims; WHER EAS, the mechanic s lien count was dismissed on motion of defendants, and plaintiff s motion to amend the complaint was denied on February 3, 2005 for the reasons stated on the record; WHEREA S, trial was held on the remaining claims on February 22, 2005. 1 NOW, TH EREFOR E, this 5th day of April, 2005, the following findings of fact and conclusions of law are made. Findings of Fact 1) Plaintiff, John B. Copeland (hereafter Plaintiff or Copeland ) is a building contract or an d res torer of p rope rty. 2) Defendant, Marta Sullivan (hereafter Sullivan ) lived in a one-story house near Georgetown, Delaware in April of 2003. 3) At that time, Defendant, Richard Goodwin (hereafter Goodwin ) was Sullivan s lo ng time clo se friend an d they shared c hildren. At a ll times pertinen t to this litigation, Goodwin enjoyed a close relationship with Sullivan. 4) The legal title to the real estate upon w hich the house sat w as in Goodw in s name alone. 5) Sullivan paid the mortgage, taxes and other expenses associated with the house and prop erty. 6) Sullivan desired to improve the house which was an older beach type cottage and contacted Goodwin with this purpose in mind. 7) As a result, Sullivan signed a contract with Goodwin on or about April 17, 2003. 8) The contract, by its terms, was on a time and material basis with twenty percent for overhead and profit. It was not a fixed price contract. Copeland was to design and 2 build an Addition. Unless otherwise directed, the materials were ordered by Copeland in coordination with Sullivan. 9) The term Addition was no t defined o n the face o f the contra ct. 10) From the surroun ding circum stances, inclu ding the blu eprints used in obtaining the building permits, the Addition involved the expansion of the existing house into a two-story house. This called for two additional bedrooms and a study on the second floor with an extension of the greatroom on the first floor. Sullivan had drawn a picture with a loft design but this wa s not part of the contrac t. 11) Although Sullivan was not in good health, Sullivan knew the scope of the work for the Addition was for two floors. Copeland informed her about this subject and Sullivan had access to the blueprints and permits for this work. 12) Durin g the time o f construc tion, neither S ullivan nor G oodwin complain ed to Copelan d that the tw o-story addition was beyon d the scop e of the A pril contract. 13) During the construction, Copeland used Goodwin for labor as well as Luke Anderson. He was one of Sullivan s children. 14) Work and construction began during the week of May 1, 2003. 15) The construction continued until the week of August 14, 2003. 16) During the time of construction, Sullivan visited the site and complimented Cope land on his wo rk. She also w rote him that the h ouse w ould be a show case. 17) Durin g the time o f construc tion, unanticip ated wor k had to be complete d. This 3 work included the removal of duct work and a heating system which could not support the larger buildin g. It included replacem ent of items damage d by fire and jo ists which c ould not support a second story. Goodwin and Luke assisted Copeland in the project and knew the work had to be done. 18) Copeland advised Sullivan about these circumstances and Sullivan had no objection. Further, Sullivan knew about this work from what she observed at the site and through her relationship with Goodwin. The work was authorized. 19) Although the contract was not limited in price, Sullivan did not have the financial res ources to co mplete it. 20) Sullivan had previously filed bandruptcy. Goodwin had the real estate in her name to help her establish a home. 21) Sullivan ran out of funds after she paid Copeland $40,000.00, and she was hoping to get m ore mo ney from an out o f state sa le of a c amp g round . 22) During the first two weeks of August, 2003, Sullivan informed Copeland of her hope to obtain additional funds. 23) During the first two weeks of August, 2003, Copeland desired to limit her financial ex posure an d asked C opeland to submit ano ther contrac t. 24) Copeland submitted another contract dated August 2, 2003. It contained specifications requested by Sullivan. Nevertheless, there was still work beyond the August proposal which would have to be done before a certificate of occupancy could be 4 issued. This August contract was never signed. 25) Beca use Sullivan ran out of m oney; Cope land stopp ed doing w ork as he d id not expect to be paid. 26) When worked stopped in August, the framing had not been enclosed. The roof had not been completed because Sullivan could not decide on the kind of roof which she desired. 27) Wh en the Ap ril contract w as signed, C opeland to ld Sullivan th at there wo uld be demolition work and that the middle part of the house would be exposed to bad weath er. Cop eland to ld her to remov e her va luables and oth er perso nal pro perty. 28) During the time of construction, Cop eland attempted to protect the s tructure from the elements, including the placement of temporary coverings. 29) Piles under the house were in place and were not up to standard. Copeland was not responsible for them. 30) There was a gap or separation between the new and existing structures. The original structu re was no t plumb. If p ermitted to fin ish, Copela nd wou ld have be en able to join the structures by floor covering and other techniques. When doing this, Copeland intended to replace the temporary flashing. 31) Cop eland did n ot threaten o r verbally abuse Sullivan ab out paymen t of the bill. 32) Sullivan paid or is credited with $40,854.97, and Copeland is due 20% for overhead and prof it under the c ontract. 5 33) Cop eland s estim ate that the 20 % figure should be based on $85,000 - his belief about a low end cost to finish the project - is too speculative for an award. 34) Sullivan knew the construction would expose her personal property and assumed the risk of loss by not removing them. 35) As to claims for property damage, for clothing and furniture, Sullivan did not produce any receipts or estimates. Further, she was merely guessing what these losses might be and this evidence is too speculative for an award. 36) As to claims for defective workmanship, Sullivan did not present a general contrac tor as en visione d in the p retrial stip ulation. A buildin g inspe ctor wa s presen ted. The inspector first saw th e property on February 28, 200 5 and did not kno w how w ork done on the property could be allocated between Copeland and Goodwin. In this regard, Goodwin did considerable work after Copeland left. Further, the inspector did not quantify a reas onable co st to correct an y alleged defic iencies wh ich could b e attributed to Copeland. 37) The work done by Copeland was in accord with the April contract. It was not defective. S ullivan s com plaints wer e motivated by Copelan d s effort to collect his bill. 38) Concerning credibility, Copeland is more believable than Sullivan. For example , Sullivan de nied signing the April 17 , 2003 con tract although admitting this essential fac t in her signed answer to the comp laint (¶ 3) as w ell as through the facts admitted without proof section in the pretrial stipulation. 6 39) Copeland acted as a reasonably prudent restoration contractor would under the circumstances. Copeland did not intentionally inflict mental distress on Sullivan. Conclusions of Law (a) Copeland has satisfied his burden of proof by a preponderance of the evidence to show that he is due $8,170.00, being 20% of overhead and profit which accrued at the end of his work. H oweve r, this figure is red uced by $39 1 to $7,780 .00. Certain b ills should be based on the percentage of Copeland s actual charges for supplies. The parties determine d the $391 figure at trial. (b) Copeland has not sustained his burden of proof to show the recovery of any additional damages. (c) Copeland made the contract with Sullivan. Sullivan was not an agent of Goodwin. Her acts do not make Goodwin liable to Copeland. Goodwin was not an interested third party beneficiary of the contract. The use of the house and payment of the expenses were Sullivan s alone. No judgment, therefore, is entered against him. (d) Sullivan has not sustained her burden of proof to show by a preponderance of the evid ence th at Cop eland s work was d efectiv e or that s he susta ined an y damag es. Although the contract called for the work to be to her satisfaction, her satisfaction must be reason able rather th an whim sical. She w as satisfied u ntil the mon ey ran out. Considering the foregoing, judgment is entered against Sullivan in personam for $7,780.00 together with pre and post judgment interest at the legal rate from August 14, 7 2003. Judgment is entered in favor of Copeland and against Sullivan on the counterclaim. Copeland is awarded costs. IT IS SO ORDERED. Richard F. Stokes, Judge Original to Prothonotary cc: Gerry Gray, Esquire Tasha M. S tevens, Esquire 8
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