Nickerson v. Smith

AROOSTOOK, ss.

LAURA NICKERSON and

GRAHAM WILLIAMS

PLAINTIFFS

v.

JOSEPH M. SMITH

DEFENDANT

Nee ee ee ee ee ee es ee ee

SUPERIOR COURT

Location: Caribou

Docket No.: CARSC-CV-2013-117

DECISION

This civil action was heard at the Fort Kent District Court on July 28-29, 2016. The

Court took a View of the property on July 28, 2016. Each party submitted Proposed Findings of

Fact and Conclusions of law and the record closed on December 15, 2016. The Court received

testimony from the following Witnesses:

Laura Nickerson, Plaintiff

Graham Williams, Plaintiff

Daniel O. Bridgham, P.E. (Plaintiffs’ Expert)

Glenn Caron — Whispering Pines Construction, LLC (By Deposition)

Kenneth Pelletier — Pelletier Electric

Joseph M. Smith, Defendant

Keith R. Brown, P.E. (Defendant’s Expert)

Plaintiffs submitted pre-marked Exhibits #1-#44 in a Trial Binder, all of which were

admitted, except Plaintiffs’ Exhibits #17, #18, #26 and #26A, all of which are hereby excluded.

Plaintiffs’ Exhibits 422A and #22B were also admitted, without objection, along with the

testimony of Kenneth Pelletier, Electrician.

Defendant's lxhibits #1 and #2 were admitted, without objection, along with the

testimony of Keith R. Brown, P.E., the Defendant’s Expert Witness.

PLAINTIFFS’ COMPLAINT.

This action centers around a single family residence located on the South Perley Brook

Road in Fort Kent, Maine. The Defendant, whose principal occupation was that of a commercial

applicator of polyurethane insulation in the Fort Kent area, constructed the building to which this

litigation relates’. The Defendant's initial plan was to build himself a camp overlooking Black

Lake. The Defendant began construction and continued to work on this property from 2009 until

the Spring of 2012. By that time, the property had become a somewhat larger project than he had

originally planned. He had never lived in the property and had only used it as a workshop and a

place to store vehicles’. In the Spring of 2012, as the property continued to remain vacant, the

Defendant's wife gave him a directive "to just sell it!" The Defendant then listed the property

with a local realtor. On May 4, 2012, the parties’ entered into a purchase and sales agreement

consisting of a standard Purchase and Sales Agreement and three Addenda (Plaintiff's Exh. #1).

At the time of closing of the real estate sale, there was no detached garage at the property. The

Plaintiffs wanted a garage and the Defendant agreed to build one for them. At the closing, the

parties signed a Contractor Agreement, prepared by Defendant’s Attomey, which provides the

“Builder's Warranty” upon which Plaintiffs rely in Count II of the Complaint. This simple,

straight-forward provisions states:

It is also agreed between the parties hereto that Owner-builder warrants the

materials and good workmanship of all labor on the house and garage for a

period of one year.” Plaintiffs’ Exhibit #5.

It appears that the Defendant had no formal training in home construction, but simply acquired his skills on the job

over lime, He had previously constructed two other homes. At the lime, there was no building code in Fort Kent.

? Tt appeors that initially there was a garage beneath the primary living area of the home. As part of the renovation,

the Plaintiffs wanted to convert that "garage space" into another bedroom for one of their four children. This

necessilated the construction of another garage as described herein.

* Only Graham Williams signed the agreement. It is clear that he did so on bis own behalf and on behalf of his wife,

the Plaintiff Laurie Nickerson. At the time the parties entered into their agreement, the Plaintiff Graham Williams

was employed at the local hospital, The Plaintiff Laurie Nickerson continued to reside in the Herman area with the

parties’ four children. At some paint, she and the children moved up to Fort Kent and she became the principal

contact with the Defendant pertaining to the home

The “Contract Documents” upon which Plaintiffs rely were admitted into evidence,

without objection, and are identified as:

Plaintiffs’ Exhibit #1 Purchase and Sale Agreement with Addendum I-3

Plaintiffs’ Exhibit #1A Seller's Property Disclosure

Plaintiffs’ Exhibit #2 Home Inspection Report ~ April 3, 2012

(Keith R. Brown)

Plaintiffs’ Exhibit #3 Home Inspection Follow-Up Report -- May 30, 2012

(Keith R. Brown)

Plaintiffs’ Exhibit #4 Proposal/Acceptance — Garage — April 4, 2012

Plaintiffs’ Exhibit #5 Contractor Agreement — June 29, 2012

Plaintiffs’ Complaint seeks damages from the Defendant for Breach of Contract (Count

I), Breach of Express Warranty (Count II), Negligent Performance (Counts LI and IV) and

Negligent Misrepresentation (Count V). In their Complaint, the Plaintiffs detail an extensive list

of serious defects relating to the construction of the house and garage. Among the Plaintiffs'

different complaints is a significant one that relates to the trusses that support the garage roof.

Both Plaintiffs' expert Dan Bridgham and Defendant's expert Keith Brown agree that the trusses

were substandard and needed to be repaired and/or replaced. Based upon a reasonable view of

the evidence, the Court is compelled to find the Defendant breached his Contract and the

Builder’s Warranty, which he gave to the Plaintiffs. Therefore, judgment will be entered for the

Plaintiffs, against the Defendant on Counts | and II of the Complaint. The Court does not need

to reach the issues of Negligent Performance or Negligent Misrepresentation. Counts III, IV and

V are therefore dismissed, without prejudice.

DEFENDANT’S DEFENSE

The Defendant’s defense to Plaintiffs’ claims are two-fold. First, the Defendant contends

that the Plaintiffs are secking compensation for “betterments” or improvements to the property

rather than for damages. Second, the Defendant maintains that the Plaintiffs could see what they

were purchasing was nol a “new home”, but an “existing home”. The first defense is actually an

argument pertaining to the determination of the amount of damages the Court should award and

has some merit. To the extent the Court finds that particular repairs constitute “betterments”, it

will adjust the award of damages accordingly.

The second defense has no merit, in light of the Builder’s Warranty and the undisputed

construction defects present in the home and garage, which all the witnesses acknowledged were

present at the time of sale.

As indicated above, the Defendant and his expert witness acknowledged many of the

Plaintiffs’ complaints have merit, especially with respect to the garage roof truss system, the

basement bathroom shower and numerous electrical problems throughout the home. The thrust

of their testimony relates to the cost of correcting the problems, or mitigation of Plaintiffs’

damages.

BUILDING DEFECTS — PROBLEMS

Plaintiff, Laura Nickerson, prepared a summary of the building defects and problems

encountered by Plaintiffs soon after taking occupancy of the home (Plaintiffs ’ Exhibit 413). This

has been helpful in providing focus upon the Plaintiffs! principal complaints. These problems are

identified by “Issue” as:

Garage Roof Trusses

|

2 Heating System

3 Electrical

4. Basement Bathroom

5 General Carpentry

Plaintiffs have also provided a Summary of Damages and Repairs (Plaintiffs' Exhibit

#44) referencing each of these issues, by Exhibit number and the cost of replacement or repair of

each defect. Except as otherwise indicated herein, Plaintiffs and their witnesses have provided

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credible evidence on issues !, 3, 4 and 5. The evidence concerning the heating system does not

support an award of damages for those items (oil tank, tempering valve and plumbing leaks).

Plaintiffs did not call witnesses from Daigle Oil Company or Ken-L Electric. Plaintiffs’ Exhibits

#17, #18 and 426A were not admitted. Therefore, no damages will be awarded for issues

relating to the heating system.

As to the remaining problems and defects identified by Plaintiffs, they did present

reliable aud credible evidence of the existence of the construction defects and the reasonable cost

of repair (with some exceptions). These are identified as follows:

l. Garage Roof Truss System, It is undisputed the garage roof truss system,

constructed on site by Defendant, was inadequate, poorly designed and possibly dangerous.

Both experts testified the roof trusses did not meet any reasonable standard of construction.

Plaintiffs’ expert, Daniel O. Bridgham, P.E., inspected the garage in September 2012 and found

“the trusses are very inadequate”. He recommended the Plaintiffs “place nothing of value

within the structure..." (Plaintiffs’ exhibit #7). Mr. Bridgham testified he was concerned the

roof would collapse. Mr. Bridgham’s photographs of the trusses and his calculations of their

stability were received, without objection, as Plaintiffs’ exhibit #8 and #9. The Court finds his

testimony credible and persuasive.

The Defendant’s expert, Keith R. Brown, inspected the roof truss system on March 26,

2013. In his Report dated April 22, 2013 (Plaintiffs’ Exhibit #12), Mr. Brown observed:

3.2 The detached garage is a wood-framed structure supported by a cast in place

concrete slab on grade foundation (photos 1-5). The foundation also includes a 4’

high concrete wall at the back. The overhead doors face South Perley Brook

Road, and the ridge of the gable style roof is oriented parallel to South Perley

Brook Road. A wood framed staircase at the back right corner of the garage leads

to an 8 wide attic storage space that spans the entire width of the garage (photos

3.3

6-8). The exterior walls are finished similar to the house. The roof was snow

covered and therefore not visible, but is understood to be composition shingles,

also similar to those on the house.

The garage roof support system consists of field fabricated wood trusses

(photos 9-14). The trusses are configured to have a 7:12 or 8:12 pitch, are spaced

at 24” centers, span from front to back, and incorporate tnterior web members that

provide for an 8” wide attic storage space. Top chord, bottom chord and internal

web members consist of 2” x 6” nominal lumber. Observed grade stamps on the

lumber indicate that it was graded #2 S-dry (<19% moisture content) and was

milled by Fraser Timber, LLC at their Masardis, Maine facility (photo 15).

Most of the roof truss components are connected by gussets made from

pieces of oriented strand board sheathing that appears to be similar to that of

the roof sheathing. The gussets are nailed on each side of the connection, and

based on the thickness of the lumber and the gussets, the nails are in the

order of 2”-2 %” long. Connections were made using nails from a

compressed air nail gun. No specific nail pattern was observed.

The bottom chord connection at approximate center of the span is gusseted with

two pieces of 2” x 6” lumber, approximately 4’ long, one on either side of the

connection,

According to Mr. Smith, the trusses were not designed or engineered by a

licensed design professional.

The roof deck consists of 5/8” thick AdvanTech® oriented strandboard roof

sheathing manufactured by Huber Engineered Woods of Easton, Maine (photo

16).

The presence of snow on the roof at the time of the inspection prevented

observation of the roof surface. However, by placing a 4-foot carpenter’s level

on the lower edge of the bottom chord of a truss, it was observed that the

bottom chord sloped downward from the front and back walls toward the

center of a rate of 5/8” per 4’ at the time of the inspection. This slope rate

results in an overall 2-inch sag in the bottom chord of the truss at center.

There was no evidence of distress or component separation at any of the observed

truss connections. Further, the front and back walls of the structure were

reasonably plumb, as measured with a 4’ carpenters level.

There are no indications of past or on-going roof leaks.

(Plaintiffs’ Exhibit #12, Sections 3.2 — 3.3 at Pages 2 — 3). (Emphasis provided).

It is clear that both experts agreed the roof truss system was substandard, inadequate and

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in need of reptacement. Mr. Bridgham recommended the roof decking and shingles be removed

and the (russes replaced with engineered roof trusses. This is the advice followed by the

Plaintiffs who had Whispering Pines Construction, LLC remove the roof decking, replace the

trusses and replace the decking and shingles in June, 2013 at a cost of $18,550.00. (Plaintiffs’

Exhibit #14).

Mr. Brown, the Defendant’s expert, suggested an “economical, feasible method of

augmenting the roof truss system”, in place, using engineered two-part trusses provided by

Aroostook Trusses. (See Plaintiffs’ Exhibit #11 at Pages 4-6, Section 4.1). Mr. Brown premises

his suggestion by stating “There is no question that factory fabricated, engineered roof trusses

are the best possible method to support the existing roof system.” Following which, Mr. Brown

sets out a twelve-step process to augment the existing trusses, in place.

Mr. Brown estimated the alternate method of repair would cost $10,778.15, including the

two-part engineered trusses. (See Defendant's Exhibits i] and #2).

This garage was newly constructed by Defendant in the Summer of 2012. The issue with

the roof trusses was apparent almost immediately. The problem was serious and immediate.

Plaintiffs’ contracted with Defendant for a new garage and Defendant guaranteed all matenals

and workmanship. (Plaintiffs’ Exhibit #5).

Although both engineers offered sound, workable solutions to the problem, the Court

concludes that under the particular circumstances of this case, Mr. Bridgham offered the most

appropriate remedy, to wit, removal of the roof decking and replacement of the roof trusses with

an engineered fabricated roof truss system. It is worth remembering that from the outset it was

the Defendant's plan to utilize pre-engineered roof trusses from Aroostook Trusses, a well

known supplicr of such building components here in Aroostook County. Utilization of pre-

engineered trusses appears to have become the standard for home construction here in our area

where one can anticipate substantial snow loads every winter. Thus, it appears that use of these

trusses was within the Defendant's contemplation as he began work on the garage. In deed, the

Defendant testified that had planned to make use of these trusses until he learned that there was a

back log of orders and that he would not be able to obtain those trusses within the time frame

that the Plaintiffs, particularly Ms. Nickerson wanted. The Defendant testified that he felt he only

had about two weeks within which to finish the garage and because he couldn't get his pre-

engineered trusses within that time frame, he simply went ahead and fabricated his own trusses

according to his own design’. Ms. Nickerson testified that while she was anxious to get into the

home, presumably to get her children settled into school and community, she was in no hurry.

The residential portion of the home was habitable and she could have and would have waited for

engineered trusses for the garage.

The court has acquired the impression that Ms. Nickerson may have been a more

demanding customer than what the Defendant may have been accustomed to. Although, the

Defendant had previously built two other homes, his principal line of work was not home

construction, it was commercial insulation. While this project may not have been the Defendant's

first foray into home construction, it's the court's impression that he did not have much

experience in dealing with the myriad of issues that can arise between a contractor and an

anxious homeowner, As the different issues began to arise, it seems fair to infer that the

Defendant became just as desirous of completing the job as soon as possible and leaving the site

as Ms. Nickerson may have been to have the work completed and to have the full use of her

home made available to her and her family. It appears that the relationship between the

“The Defendant was a self-taught “builder” who, not unlike many builders in Aroostook County, acquired his skills

on the job and without the benefit of any significant formal training,

Defendant and Ms. Nickerson, his principal counterpart, began to deteriorate rapidly over time to

the point where they stopped speaking with each other. Consequently, communication between

them was less than ideal.

This circumstance played out in at least one major way. After the sag in the garage roof

trusses became manifest in the fall of 2012, Keith Brown made his third visit to the site on

March 26, 2013. Following that inspection, he formulated a rather ingenious solution that the

court is satisfied would most likely have restored structural integrity to the garage roof had it

been implemented. He laid this plan out in detail in Plaintiffs’ Exh. 12.°

Plaintiffs' expert Dan Bridgham had visited the site six months earlier and was the first

professional to conclude that the garage roof system was "very inadequate". Although he did not

lay out a specific plan for addressing the deficiencies, he seemed to recognize that two

possibilities existed; either to "repair" or to "replace" and added the further recommendation that

the Plaintiffs' obtain profession assistance. (See Plaintiffs' Exh 7).

The garage made it safely through the winter of 2012-2013, but the problem remained.

As previously indicated, the Defendant's expert, Keith Brown made his own assessment in the

Spring of 2013 and provided an estimate of the cost to repair the roof. [It does not appear that the

Defendant ever shared this information with the Plaintiffs before Glenn Caron actually undertook

the repair work in June of 2013. Query whether this was the result of problematic

communication between the parties? Plaintiff Graham Williams testified that by the time he ever

saw Keith Brown's report and cost estimate, Mr. Caron had already started his “roof replacement

work". One is left to wonder what course this case might have taken if the Plaintiffs had earlier

received Mr. Brown's report and undertaken meaningful discussion? What is clear is that while

* The court notes that although the report references attached Appendices A,B,C, and D, only Appendix A was

admitted as part of this exhibit Appendix B was the "Proposal For Supplemental Truss System” from Aroostook

Trusses. ‘This appendix found its way into the record in the form of Defendant's Exhibits 1 and 2

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the burden of payment pursuant to the contract remained upon the Plaintiff's, the burden of

performance created by the "Builder's Warranty remained upon the Defendant.

As a result of the parties’ failure to communicate, Mr Caron's work was underway before

the Plaintiffs learned of a viable alternative option. It's worth noting that both the Defendant and

Keith Brown offered the same observation regarding competing solutions. Keith Brown wrote,

"There is no one way to build or repair a home." ° This appears to be a point that the Defendant

also recognizes. According to the court's trial notes, the Defendant testified that "People do

things in different ways.". Both Dan Bridgham and Keith Brown offered viable, sound

professionally engineered solutions. That one solution ultimately turned out to be significantly

more expensive than the other when viewed from "hindsight" does not mandate the conclusion

that the Plaintiffs failed to mitigate their damages as required by law by failing to follow a course

about which they were unaware. The Plaintiffs sought professional advice and followed one of

two possible courses laid out for them. This was a reasonable course of action for them to take at

that time.

Ultimately, it seems to the court that the Plaintiffs are entitled to the benefit of their

bargain, i.e. to have a garage that has pre-engineered trusses. Plaintiffs are therefore awarded

most of the cost of repairs.

The Defendant makes a fair point in calling the court's attention to the fact that the

gargage as repaired is somewhat larger than that the Defendant committed to build. There was

additional labor and material expense associated with installing an additional window in the

garage and with the additional |2" of garage roof overhang, Glenn Caron estimated that the cost

of these "changes" would be approximately $500 to $700 for the window (The court finds $600

® See Plaintiff's Exh. 12, Page 8, "Conclusion"

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to be fair.) and in the neighborhood of $1000 for the additional roof overhand’. The Defendant

should not be obliged to pay for these items. Accordingly, the court finds that the Defendant is

obligated to the Plaintiff in the amount of $16,950 for the cost of remedial work on the garage

roof. Added to this amount is the cost to re-wire the garage of $613.85 (Plaintiffs' Exhibit #43)

that the court finds to have been reasonably related to remedying the "garage issue."

y 8 Barag

1, Heating System. For the reasons set forth above, no award of damages to

Plaintiffs for the alleged defects in the heating system will be made.

2s Electrical. Plaintiffs testified about problems with the electrical system from the

start of their occupancy of the home. Initially, this involved closet lights. When the Electrician

(Mr. Pelletier) inspected the electrical system, he recommended the Plaintiffs contact the State

Electrical Inspector. Taking his advice, they contacted the State Electrical Lnspector, who

performed an inspection on October 31, 2012. His Report, dated November 19, 2012, was

received as Plaintiffs’ Lxhibit #19, over the objection of Defendant. The Report details fourteen

(14) conditions that were all violations of the 2011 National Electrical Code.

Plaintiffs hired Pelletier Electric to correct the conditions noted in the Report. The Court

finds Mr. Pelletier to be a very capable and experienced electrician and also to be a credible and

persuasive witness. Mr. Pelletier testified he did not believe the electrical work was done by a

qualified, licensed electrician. The Court finds the repairs were necessary and the cost of repairs

charged to be reasonable. The Plaintiffs' claims for electrical repairs and associated costs of

repairs are summarized as follows:

” See Caron deposition, page 31 line 23 for the window estimate and page 33, line3 to 6 for the roof overhand,

* The court declines to award Mr Bridgham's engineer’s expense of $973.04 as damages. To the extent that any

expense associated with Mr. Bridgham's participation in this case is recoverable, it is the court's understanding that

such expense would be addressed in the post judgment awarding of costs rather than identified as a recoverable item

of damage.

Plaintiffs’ Exhibits #20 and #20A —- Closet Lights $ 342.97

Plaintiffs’ Exhibits #22A and #22B Home Electrical Repairs $6,100.00

TOTAL: $6,442.97

Included within the claim for electrical work is $300 for the installation of telephone and

cable TV wires. Although the Defendant installed the jacks for these services, a circumstance

warranting a reasonable expectation that they would be operational, the Defendant never

connected the wires. The court finds that the Defendant is responsible for this oversight.

The court would also observe that it's a matter of common knowledge, even for lay

people here in rural Maine, that if you leave openings and points of access to relatively warm,

sheltered spaces in your home, it is reasonably foreseeable that you are going to have uninvited

"guests". Squirrels, and mice and raccoons will make their way into such spaces and they will

indeed gnaw on electrical wires and anything else that might initially appear edible. The court

finds it reasonable to award the $1,100.00 that Mr. Pelletier associated with this aspect of his

work. Plaintiffs are awarded the sum of $6,100.00 in damages for the electrical repairs to the

home, made by Pelletier Electric as reflected in Plaintiffs’ Exhibits 22A and 22B

3. Basement Bathroom. Plaintiffs noticed immediately upon occupancy that the

basement bathroom shower enclosure leaked. Defendant acknowledged this problem in his

testimony. Defendant attempted to correct the problem, without success. It appears the

enclosure was installed, upside-down, by an unlicensed employee of Defendant. Defendant

confirmed this fact in his testimony.

Plaintiffs hired Plourde’s Plumbing to make repairs, also to no avail. Plaintiffs provided

photographs of the feaks and mold around the enclosure. Plaintiffs’ Exhibit #28. Plaintiffs then

hired Whispering Pines Construction, LLC to tear out the shower enclosure and replace it with a

custom tiled shower enclosure. In this instance, Defendant’s suggestion of “betterment” by

Plaintiffs has merit, a fact acknowledged by Plaintiff, Graham Williams, in his testimony.

Plaintiffs seek damages for this item of $2,710.00 (Plaintiffs’ Exhibit #27). The Court

finds that one-half (1/2) that amount to be the reasonable cost to remove and replace a

prefabricated fiberglass shower enclosure, including plumbing and carpentry necessary to

complete installation.

Plaintiffs are awarded the sum of $1,355.00 in damages for replacement of the basement

shower enclosure.

4. General Carpentry. During his initial visit to the home, Daniel Bridgham noted

two problems with the general carpentry of the home. (Plaintiffs' Exhibit #10). The first was

attachment of wooden handrails on the exterior deck and stairways. The second being the steps

leading from the basement first floor into the main living area above. The basement stairs have

not been replaced or repaired. Although the Court viewed the stairs and had occasion to walk up

them from the basement into the main living area, the Plaintiffs did not present any evidence

pertaining to the cost of repair Moreover, there was no evidence that although they were "steep"

they violated some recognized standard of home construction. Accordingly, no award of

damages is made for claims associated with the stairs.

Plaintiffs did have the wooden railings and handrails reinforced by Whispering Pines

Construction, LLC, at a cost of $2,970.00 (Plaintiffs’ Exhibit #30). However, the court makes

only a limited award for this item of damage. Both Dan Bridham and Keith Brown found fault

with the wooden deck rails. (See Plaintiffs’ Exh. 10 and Plaintiffs' Exh. 12, page 7, J 4.6)

however, the court has no record evidence to indicate that a 36" rail is substandard and that a 42"

rail is required. The court is persuaded that something less than a 4" separation of the rails is

required to mitigate the risk to small children who might be inclined to stick their heads out

through the wider opening. Glenn Caron's estimate to repair the 36" height rails was $1020.00

The court awards this sum as damages.

Within the one-year warranty period, Plaintiffs noted several other carpentry issues:

The upstairs bathroom fan vented into the attic, instead of outside:

They had no access into the attic;

The basement ceiling sagged in places;

The insulation in various parts of the home was inadequate (Plaintiffs’ Exhibit

#38);

Drywall in the home had to be repaired after it was cut or removed to correct

electrical, plumbing and carpentry defects; and

The porch/deck attic space was open and had animals causing damage and leaving

scat behind.

Some of these general carpentry issues were noted as well in the Report of Keith R.

Brown (Plaintiffs’ Exhibit #12) at Page 4, Sections 3.8 and 3.9.

Plaintiffs submitted invoices from Whispering Pines Construction, LLC for these general

carpentry repairs, including:

Plaintiffs’ Exhibit #32 Repairs to Porch Attic Area~ To Close It In $2,200.00

Plaintiffs’ Exhibit #33 = Vent Second Floor Vent to Outside $ 385.00

Plaintiffs’ Exhibit #37 Ceiling Repairs in Basement $ 84.00

Plaintiffs’ Exhibit #39 Attic — Insulation $1,960.00

Plaintiffs’ Exhibit #41 Patching Sheetrock $ 675.00

Plaintiffs’ Exhibit #32 = Wall and Ceiling Repairs, Patches in Closets $2,373.00

TOTAL: $7,677.00

The court finds that the evidence supports the Plaintiffs' claims for these damages except

for the claimed damages to the "porch attic” area. (See Plaintiffs' Exh. 32). The court finds that

the Defendant was remiss for leaving a 4" opening in the porch ceiling. Plaintiff's Exhibit 31,

depicts both the 4" opening and the simple strategy for eliminating that opening. The plastic

vents with screens serve both to promote desirable ventilation and the restriction of pests. That

this opening should have been closed off would seem to be a matter of common sense (not

requiring expert testimony) and therefore most probably a simple oversight on the Defendant's

part during construction. It is a defect nonetheless and the Plaintiffs are entitled to some damages

for this. Glenn Caron suggested that one could install pressure treated 2 X 4 to achieve the

desired result at a cost of $850. It seems to the court that vents and screening could be

accomplished for something even a little less. The court awards $500 for this aspect of the

Plaintiffs’ damages.

Therefore, the Plaintiffs are awarded the sum of $5977.00 in damages for the replacement

or repair of these items.

SUMMARY OF DAMAGES

Utilizing Plaintiffs’ Exhibit #44, taking into account the findings outlined above, the

Court summarizes the damages awarded to Plaintiffs as follows:

SUMMARY OF DAMAGES AWARDED

PLAINTIFFS'

EXHIBIT # PROVIDER AMOUNT

#14 Whispering Pines (Garage Roof) $ 16,950.00

#15 Bridgham Engineering $ 0.00

#43 Pelletier Electric $ 613,85

#17 Daigle Oil Company $ 0.00

#18 Ken-L Electric $ 0.00

#20 Pelletier Electric (Closet Lights) $ 342.97

#21 Pelletier Electric (Estimate) $ 0.00

#22A -#22B_ | Pelletier Electric (Actual) $ 6,100.00

#23 Pelletier Electric (Estimate) $ 0.00

#26A Plourde's Plumbing & Heating $ 0.00

#27 Whispering Pines Construction (Basement Shower Repairs) | $ 1,355.00

#30 Whispering Pines Construction (Railings) $ 1020.00

#32 Whispering Pines Construction (Porch Attic) $ 500.00

#33 Whispering Pines Construction (Bathroom Vent) $ 385.00

#35 Whispering Pines Construction (Basement Stairs) $ 0.00

#37 Whispering Pines Construction (Ceiling Repair) | $ 84.00 |

#39. Whispering Pines Construction (Attic Insulation) $1,960.00

_ #4) Whispering Pines Construction (Sheetrock Patches) $ 675.00

| #42 Whispering Pines Construction (Wall/Ceiling Repairs) $ 2,373.00 |

TOTAL:

$_32,358,82

Judgment is entered for Plaintiffs against Defendant, in the amount of $32,358.82”

together with prejudgment interest at the rate of 3.16% and post judgment interest at the rate of

6.87% plus costs.

The Clerk is directed to enter this Judgment in the docket by reference.

DATED: April 10, 2017

E. ALLEN HUNTER

ACTIVE RETIRED JUSTICE,

SUPERIOR COURT

° The court has amended the award of damages as set forth in its original decision to correct a typographical error

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