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Chibroski v. Landmarc Construction Services, LLC

Superior Court of Maine, Cumberland

April 3, 2018



          Lance E. Walker, Justice.

         Before the Court is Gordon and Robin Chibroski's (collectively, "Plaintiffs") complaint against Defendant for violations of the Maine Home Construction Contracts Act ("HCCA"), 10 M.RS.A. § 1486 et seq., and the Unfair Trade Practices Act, ("UTPA"), 5 M.R.S.A. § 205-A et seq., and for fraudulent misrepresentation or, in the alternative, fraudulent concealment. A bench trial was held on this matter on September 28, 2017. The Court makes the following findings and conclusions.

         I. Findings of Fact

         On or about January 23, 2013, Robin Chibroski ("Robin") contacted Defendant through its President, Marc Gagnon, [1] to discuss entering into an agreement for construction services. Plaintiffs' primary project involved the construction of a horse arena, but Plaintiffs also sought to have Defendant perform renovations on Plaintiffs' home located at 81 Nash Road. Windham, Maine, Pertinent to this lawsuit, Defendant agreed to perform work to build an accessory apartment in Plaintiffs' home and to renovate other areas of the residence including the basement, the garage, and a conference room. The accessory apartment was intended to be a rental unit. The parties agreed that work on the interior of the home would begin the week of March 4, 2013. Throughout the discussions with Plaintiffs, Defendant reassured Plaintiffs he was working on the building permit application for the accessory apartment.

         On February 11, 2013, Defendant notified Plaintiffs that the permit application had been submitted. That same day, Defendant emailed the town inspector and his administrative assistant to attempt to set a meeting to discuss the permit application. After receiving no response, Defendant emailed the inspector and the administrative assistant against on February 18, 2013. On February 25, 2013, Defendant and Robin met with the director of Windham Code Enforcement, Heather McNally.

         On March 4, 2013, Defendant told Plaintiffs he would submit to the Town a revised permit application to incorporate a redesigned septic system for the accessory apartment. Defendant sent the revised application to Heather McNally on March 12, 2013. On March 13, 2013, Robin acknowledged in an email to Defendant that the permit application was still pending. On April 29, 2013, Defendant noted to the Town administrative assistant that he was still waiting on the accessory apartment permit. By email to Defendant dated April 30, 2013, Heather McNally raised several concerns about the accessory apartment and advised Defendant that although the apartment had already been constructed, it still required permits and inspections as well as a certificate of occupancy.

         The record shows the initial building permit application was received by the Town of Windham on February 11, 2013. It was signed by Mr. Gagnon as the authorized agent of the property owner. The permit application was never approved. The February 11 application contains a notation stating "not permitted per Heather 10/21/14." (Pl.'s Ex. J.)

         On May 3, 2013, Plaintiffs signed a written contract with Defendant for construction of the horse arena. The work on Plaintiffs' residence was referenced in this contract as "Changer [sic] order #001" and valued at $3, 982.00. Change order #001 was attached to the contract and contains a breakdown of the hours of work performed on the residence between the dates of March 7 and April 15, with a note that the only remaining item was to insulate the garage. Robin gave Defendant a check dated April 19, 2013 in the amount of $3, 982.00. The memo reads "81 Nash Road Interior Work."

         On June 7, 2013, Defendant sent Plaintiffs a second change order for the insulation of the garage and miscellaneous labor on the residence, valued at $1, 069.00. After receiving this change order, Robin questioned Defendant as to what the $3, 982.00 represents and why the garage insulation was going to cost twice what Robin expected. Defendant explained that the $3, 982.00 was the first payment for all of the interior work and that the cost of the garage insulation included both materials and labor. Robin indicated that she understood the interior work to be a separate invoice and did not understand why it was a part of the larger contract. Defendant replied that Plaintiffs' project "is all one project and job number to us so the interior work that was not part of the arena was above and beyond and I showed it as a change order to my contract with you." (Def.'s Ex. 4.)

         On August 17, 2016, Plaintiffs filed a complaint in this Court, alleging violations of the HCCA as well as fraudulent misrepresentation or, in the alternative, fraudulent inducement. On November 16, 2016, Plaintiffs received a notice of violation from the Town of Windham stating Plaintiffs did not have a required building permit for their property. Plaintiffs thereafter amended their complaint on January 30, 2017 to add a claim under the UTPA.

         II. Discussion

         A. Home Construction Contracts Act

         The HCCA states requires "[a]ny home construction contract for more than $3, 000 in materials or labor" to be in writing and signed by both the home construction contractor and the homeowner. 10 M.R.S.A. § 1487. Both parties "must receive a copy of the executed contract prior to any work performance. This basic contract must contain the entire agreement between the homeowner ... and the home construction contractor and must contain" a number of contractual terms detailed in the statute. Id.

         Plaintiffs argue that the agreement that Defendant would perform work on Plaintiffs' residence to construct an accessory apartment falls within the purview of the HCCA. Plaintiffs contend Defendant violated the HCCA by performing under a verbal home construction contract for more than $3, 000, rather ...

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