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Nickerson v. Smith

Superior Court of Maine, Aroostook

April 10, 2017




         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 U26A, all of which are hereby excluded. Plaintiffs' Exhibits #22A and #22B were also admitted, without objection, along with the testimony of Kenneth Pelletier, Electrician.

         Defendant's Exhibits #1 and #2 were admitted, without objection, along with the testimony of Keith R. Brown, P.E., the Defendant's Expert Witness.


         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[1]. 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[2]. 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[3] entered into a purchase and sales agreement consisting of a standard Purchase and Sales Agreement and three Addenda (Plaintiffs 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 Attorney, 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.

         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 1-3
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 III 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 I and II of the Complaint. The Court does not need to reach the issues of Negligent Performance or Negligent Misrepresentation. Counts in, IV and V are therefore dismissed, without prejudice.


         The Defendant's defense to Plaintiffs' claims are two-fold. First, the Defendant contends that the Plaintiffs are seeking 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 not 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.


         Plaintiff, Laura Nickerson, prepared a summary of the building defects and problems encountered by Plaintiffs soon after taking occupancy of the home (Plaintiffs' Exhibit #13), This has been helpful in providing focus upon the Plaintiffs' principal complaints. These problems are identified by "Issue" as:

1. Garage Roof Trusses
2. Heating ...

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