Rodrigue v. Toulousse

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STATE OF MAINE KENNEBEC ss DISTRICT COURT LOCATION: AUGUSTA DOCKET NO. CV-05-116 fliM - KEN- / l , / , / 2 ~ t ? ( + MARC RODRIGUE, Plaintiff JUDGMENT v. GERALDINE TOULOUSSE, Defendant Jury-waived trial on the plaintiff's complaint and the defendant's counterclaim was held on 9/28/06. The court has considered the testimony, the exhibits, and the arguments and submissions of counsel. Facts The plaintiff is a self-employed contractor. In November 2004, he and the defendant entered a contract for the construction of a gambrel-style garage on the defendant's property. Pl.'s Exs. 1, 5. The firm contract price was $47,000.00. Pl.'s Ex. 1. The plaintiff performed an additional $250.00 of work at the defendant's request. Pl.'s Ex. 6. The plaintiff began work on the garage in November 2004 and saw the defendant at the construction site everyday he was there. Before 1/23/05, the defendant complained to the plaintiff that the garage was not big enough and was not what she and her sister wanted. Def.'s Ex. 5. The loft area was accessible in December 2004 because the stairs to the loft area were in place by then. When Patricia Tabor, the defendant's sister, contacted the plaintiff, he e-mailed defendant's exhbits 6, 7, 9, and 10 in an effort to explore what could be done with the layout of the builhng. The garage was attached to the defendant's residence and could not be expanded in the direction of the adjacent property. When the vinyl siding arrived, the plaintiff told the defendant he required payment in order to continue the job. The defendant told the plaintiff she would not pay any additional money and told him to leave the job. In fact, she called the police and refused to let the plaintiff take h s tools. The plaintiff was willing to complete the work until the lawsuit was filed. He was given no opportunity to remedy the claimed defects or complete the job. Def.'s Ex. 12. Although the defendant did not get what she apparently wanted, she got what she contracted for. At the time the plaintiff's services were terminated by the defendant, she had paid $25,000.00. The plaintiff had paid for all materials and subcontractors and had performed 142 hours of work at $30.00 per hour. When he was terminated, he was owed $7410.19. Pl.'s Exs. 3, 7. The plaintiff sent to the defendant an invoice dated 2/7/05 for $7410.19 but has not been paid the remaining amount due. Pl.'s Ex. 7. In March 2005, the plaintiff filed a mechanic's lien for the amount he was owed and notified the defendant of the lien. Pl.'s Exs. 8, 9. The defendant has not been damaged by any act of the plaintiff. Further, the defendant did not prove damages for the alleged failures of the plaintiff. Conclusions The defendant has breached her contract with the plaintiff. The plaintiff itemized the work performed as of the date he was told to stop work and charged the usual contractor hourly rate. 269, 271. See Paffhausen v. Balano, 1998 ME 47, ¶¶ 6-8, 708 A.2d The defendant has failed to prove her counterclaims. ! Pettee v. Young, 2001 & ME 156, ql 20, 783 A.2d 637, 642; 10 M.R.S.A. §§ 1487 & 1490 (2005); 5 M.R.S.A. 5 213 (2005);Tunpate v. MacLean-Stevens Studios, Inc., 1998ME 162, ¶ 9,714 A.2d 792,797. The entry is Judgment is entered in favor of the Plaintiff and against the Defendant on Counts I and I1 of the Plaintiff's Complaint in the amount of $7410.19, attorney's fees of $5722.50, a penalty of $666.92, prejudgment interest of 7.36%, postjudgment interest of 10.36%, and costs to be documented in a.bill of costs. Judgment is entered in favor of the Defendant and against the Plaintiff on Count 111of the Plaintiff's Complaint. Judgment is entered in favor of the Plaintiff and against the 1 Defendant on Counts I, 1 , and 111 of the Defendant's Counterclaims. Date: November 1,2006 M c y MIIIS Justice, Superior Cou MARC RODRIGUE - PLAINTIFF 23 GAGNE STREET AUGUSTA ME 04330 Attorney for: MARC RODRIGUE C H SPURLING - RETAINED 03/28/2005 SPURLING LAW OFFICES TWO CHURCH ST GARDINER ME 04345 DISTRICT COURT AUGUSTA Docket No AUGDC-CV-2005-00116 DOCKET RECORD vs GERALDINE TOULOUSE - DEFENDANT 23' GAGNE STREET, AUGUSTA ME 04330 Attorney for: GERALDINE TOULOUSE STEPHEN BOURGET - RETAINED BOURGET & BOURGET PA 64 STATE STREET AUGUSTA ME 04330-5194 Filing Document: COMPLAINT Filing Date: 03/28/2005 Minor Case Type: CONTRACT Docket Events: 03/28/2005 FILING DOCUMENT - COMPLAINT FILED ON 03/28/2005 03/29/2005 Party(s) : MARC RODRIGUE ATTORNEY - RETAINED ENTERED ON 03/28/2005 Plaintiff's Attorney: C H SPURLING 04/11/2005 Party(s) : GERALDINE TOULOUSE SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 03/29/2005 05/11/2005 Party(s) : GERALDINE TOULOUSE ATTORNEY - RETAINED ENTERED ON 04/19/2005 Defendant's Attorney: STEPHEN BOURGET 05/11/2005 Party(s) : GERALDINE TOULOUSE RESPONSIVE PLEADING - ANSWER & COUNTERCLAIM FILED ON 04/19/2005 05/11/2005 Party(s): MARC RODRIGUE MOTION - AFFID & REQUEST DEFAULT/JUDG FILED ON 04/21/2005 Plaintiff's Attorney: C H SPURLING 05/11/2005 Party(s1: MARC RODRIGUE RESPONSIVE PLEADING - ANSWER FILED ON 04/28/2005 Plaintiff's Attorney: C H SPURLING TO COUNTERCLAIM 05/20/2005 Party(s): GERALDINE TOULOUSE DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 05/18/2005 Defendant's Attorney: STEPHEN BOURGET 06/22/2005 Party(s): MARC RODRIGUE DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 05/26/2005 Page 1 of 4 Printed on: 11/01/2006

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