The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, SS. __. acy. Pocket No. CV;00-31
Jay McLaughlin et al., FEB 26 20%
Plaintiffs
| DENOBSCOT COUNTY !
v. ~ DECISION AND JUDGMENT
Michael Sulinski d/b/a Mike's Pool Service,
Defendant
A default was entered against the defendant on May 16, 2000. The
resulting hearing on damages was held on February 15, 2001. At the
damages hearing, plaintiff Jay McLaughlin, the defendant and counsel for
the parties were present.
The scope of the defendant's liability is established by his default to
the complaint. ‘Thus, to the extent that the plaintiffs have proven their
damages, the defendant is liable for damages associated with the defective
performance as described in paragraph 7 of the complaint.
Damages must be established to a probability. Merrill Trust Co. v.
State, 417 A.2d 435, 441 (Me. 1980). Damages are not recoverable if they
are uncertain, contingent or speculative. Down East Energy Corp. v. RMR.
Inc., 1997 ME 148, 7 7, 697 A.2d 417, 420. In a contract case, the purpose
of compensatory damages is to put the nonbreaching party in the same
position as if there had been no breach. Down East Energy Corp. v. RMR,
Inc., 677 A.2d 1070, 1073 (Me. 1996).
The defendant's work was defective in two general ways: he failed to
take steps to clean the tile after installation, resulting in a film that now
1
covers the floor; and there were problems with the grout and the
installation of tile in a number of particular areas (such as around the pool,
against the base of the wall, near a hot tub, etc.). The plaintiff's expert
testified that the cost to remove and replace the existing tilework would be
$25,156. That amount cannot be awarded to the plaintiffs, however,
unless rectification of the defendant's defective performance requires the
removal and replacement of the floor he installed.
Even according to the plaintiffs’ expert, it is unclear whether the film
on the tile floor could be cleaned off the existing surface. According to the
defendant's expert, application of cleaning agents will cure that problem,
and the cost of that work would not exceed $1,000. From this evidence,
the plaintiff has failed to prove, and the court cannot find, that removal
and replacement of the entire floor is necessary as a remedy. The plaintiff
is therefore entitled to compensatory damages of $1,000 for the
defendant's failure to properly clean the floor.
The plaintiffs presented no evidence of the cost to fix the defective
installation of grout and tile in specific areas of the pool area. Obviously, it
Would Cust someiming to remove those tiles and the tiles in surrounding
area necessary to gain access to the problem areas, and to install
replacement tiles correctly. The record evidence, however, does not
provide a basis to determine the cost of this work, which would be only a
portion of the project on which the plaintiffs’ expert provided an estimate.
Thus, the plaintiffs have not proved their damages on this part of their
claim.
The entry will be:
For the reasons set out in the order dated February 28, 2001,
judgment is entered for the plaintiffs and against the defendant in the
amount of $1,000, plus interest at the statutory rate and their costs of
court.
Dated: February 27, 2001
cline
JUSTICE, SUPERIOR COURT
/
County
Action CIVIL -— CONTRACT
JAY MCLAUGHLIN and MICHAEL SULINSKI d/b/a
ELLEN MCLAUGHLIN VS. MIKE'S POOL SERVICE
Plaintiff's Attorney Defendant’s Attorney
PATRICK E HUNT ESQ Donald F. Brown, Esq.
ISLAND FALLS MAINE 04747 Bangor, Maine 04401
Date of
Entry
2/14/00 Complaint filed.
2/14/00 Officer's Return of Service filed. (s.d. 2/7/00 by Deborah Sulinski)
2/16/00 Copy of Complaint forwarded to Office of the Attorney General, State House
Station #6, Augusta, Maine 04333.
2/16/00 Case File Notice Postcard forwarded to Plaintiff's Counsel.
5/16/00 Affidavit and Request for Default and Default Judgment filed by Plaintiff.
5/16/00 DEFAULT Entered as to Defendant Michael ~Sulinski d/b/a Mike's Pool Servic
/s/Margaret Costian, Assoc. Clerk. Copy forwarded to Plaintiff's Attorney
6/30/00 Attorney and defendant notified of hearing on damages scheduled on
the Backup Jury Waived Trial List for 8/14 - 30 & 9/11 - 9/21, 2000
before Justice Jeffrey L. Hjelm. Copy of Trial List mailed this
date.
8/10/00 Notice of Hearing filed. Hearing on Damages set for August 18, 2000 at
9:30 a.m. before Justice Jeffrey L. Hjelm. Copy forwarded to Plaintiff's
Counsel; Defendant Michael Sulinski at the address of Rooks Road,
East Eddington, Maine 04428.
8/14/00 Motion for Continuance Rule 40(b) of the Maine Rules of Civil
Procedure filed by Plaintiff.
8/14/00 Request for Hearing on Motion for Continuance filed by Plaintiff.
8/14/00 Upon Motion for Continuance Rule 40 (b) of the Maine Rules of Civil
Procedure, Motion MOOT - Aroostook County hearing has been rescheduled
to eliminate conflict. (Hjelm, J) Copy forwarded to Plaintiff's Counsel;