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Hammond Lumber Co. v. Trask

Superior Court of Maine, Kennebec

October 3, 2016

HAMMOND LUMBER CO., Plaintiff
v.
RICKY TRASK dba HARDWOOD FLOORS BY RICK, Defendant

          DECISION AND JUDGMENT

          Robert E. Mullen, Deputy Chief Justice.

         This matter was tried to the Court on January 22 and April 11 and 12, 2016.[1] After the Court has had an opportunity to review the evidence, applicable case law, and the post-trial memoranda filed by counsel on April 25"' and May 16"', 2016, the Court makes the following Findings of Fact and Conclusions of Law upon which the Decision and Judgment set out below is based:

         Findings of Fact:

         1. Plaintiff Hammond Lumber Company (hereinafter "HLC") initially filed a five-count Complaint against Defendant Ricky Trask dba Hardwood Floors By Rick (hereinafter "Defendant") on July 25, 2014 seeking an award of damages based upon theories of breach of contract, Unjust Enrichment, Quantum Meruit, Breach of Implied Warranty of Workmanlike Performance, and Negligence. The Complaint was amended on December 19, 2014 to add a claim for misrepresentation.

         2. The claim of HLC against Defendant centers around some construction Defendant performed for HLC in connection with home renovations performed in February of 2013. Specifically, Dunbar Custom Homes (hereinafter "Dunbar") was hired by Don and Jane Bickford (hereinafter "homeowners") as the general contractor to perform certain remodeling/renovations to the Bickford home that Dunbar had originally built over 20 years ago. Dunbar hired HLC to find an installer to remove some tile flooring in the home and replace it with new tile flooring.

         3. HLC retained Defendant to perform the removal of the tile flooring, level the floor, and replace the old tile with new tile. At the time of this job Defendant had performed previous jobs for HLC over the past seven years. As of this job no complaints against Defendant had been lodged previously in connection with work performed by Defendant for HLC. HLC's exhibit 3 is the only evidence of a written contract between the parties.

         4. Underneath the new tile floor was a radiant heating system. The new tile was to be a brand known as American Olean.

         5. There was evidence presented that the undersigned finds credible that if tile is installed competently it is considerably difficult to remove thereafter.

         6. There was evidence presented that the undersigned finds credible that the tile installed by Defendant was not installed competently, as exemplified by evidence including but not limited to the presence of "lippage", the fact that the mortar did not adhere properly to the tiles, multiple tiles were loose, the requested pattern for the tiles was not utilized by Defendant, etc. Several photographs entered into evidence by HLC supports the Court's finding that Defendant did not install the tiles properly.

         7. Defendant was made aware of the problems with his installation of the tile. Defendant sent a worker to attempt to rectify the situation complained of, but the worker was unable to satisfy Dunbar.

         8. Dunbar considered HLC to be his subcontractor, and the Defendant to be someone who HLC hired to install the new tile floor. The Defendant was an independent contractor, not an employee of HLC.

         9. A decision was made mutually by Dunbar, the homeowners, and HLC that all the new tiles installed by Defendant had to be removed and replacement tiles put down. This was done after "test tiles" were removed in various locations, with all found to be defectively installed. The decision to remove all tiles installed by Defendant seems reasonable to the undersigned given the evidence presented concerning Defendant's installation of the tiles.

         10. Dunbar charged HLC by the hour to remove the tiles originally installed by Defendant, prepare the area for replacement tile installation, and for the installation of the replacement tiles. It was clear from the evidence presented that the tiles originally installed by Defendant were not bonding to the floor once the work to remove the tiles began.

         11. Defendant claims he was pressured into rushing the job by Dunbar, that some of the tiles he installed were defective to begin with, and that the floor was too warm for the tiles to properly adhere to, but that Defendant was "ordered" to lay the tiles ...


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