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Le v. Averill Construction LLC

Superior Court of Maine, Cumberland

September 11, 2018

PHU LE, et al. Plaintiffs
v.
AVERILL CONSTRUCTION LLC a/k/a JEFF AVERILL, et al., Defendants

          ORDER

          Thomas D. Warren Justice.

         A jury-waived trial in the above-captioned case was conducted on June 18-20 and 28, 2018, and the parties subsequently filed post-trial memoranda of law. The trial involved only three days of testimony (June 19, 20, and 28) because there were only two Vietnamese interpreters available on June 18.

         Plaintiffs Phu Le and Tuanh Nguyen have sued defendants Averill Construction LLC a/k/a Jeff Averill and Jeff Averill a/k/a J. J. Averill Construction for breach of contract, intentional infliction of emotional distress, conversion, negligence, violation of the Unfair Trade Practices Act, and fraud. All of plaintiffs' claims arise out of Averill's construction of an addition to an existing residence owned by plaintiffs in Falmouth.

         At the conclusion of plaintiffs' case the court granted Averill's motion to dismiss plaintiffs' claim for conversion.

         The court makes the following findings of fact and conclusions of law:

         1. Plaintiffs and defendant Jeff Averill entered into a contract in July 2014 for the construction of an addition to an existing residence at 80 U.S. Route One in Falmouth. Plaintiffs had been living in Portland but planned to move to Falmouth once the addition was completed.

          2. The contract in this case was between plaintiffs and Jeff Averill in his individual capacity. The only contractual documents in this case signed by either plaintiff were two documents signed by Phu Le (PL Ex. 9 and 31). The contractor was designated as "J J Averill," not Averill Construction LLC. These documents were signed by Jeff Averill and included a notation stating "checks payable to J J Averill." Eighty thousand in cash was paid to Jeff Averill, and the first checks totaling $ 30, 000 were made payable to Jeff Averill or "J J Averill" and were endorsed by Jeff Averill. Subsequent checks were made payable to "Averill Construction" or "J J Averill Construction" or "Jeff Averill Construction" because Averill requested payment in that manner. However, plaintiffs dealt with Averill in his individual capacity and not with Averill Construction LLC.

         3. At the outset, the court did not find Averill's testimony to be credible in many respects. In particular, the court does not credit Averill's testimony that he doctored a survey submitted to the Town of Falmouth (PL Ex. 37) because he was instructed to do so by Phu Le. Instead the court finds that it was Averill who decided to add a false surveyor's stamp to the document and who submitted it to the Town - which spotted the forgery and rejected the survey.

         4. The court does not credit Averill's testimony that Phu Le assumed the role of general contractor on the project shortly after it commenced. Averill was the general contractor as long as he worked on the project. The subcontractors on the job worked for Averill, not Phu Le.

         5. The court does not credit Averill's testimony that Phu Le removed pages from PL Ex. 31.

         6. The evidence also demonstrated that, shortly before the complaint in this action was filed, Averill placed a spurious mechanic's lien for $66, 000 on plaintiffs' residence. Averill contended at trial that he did think plaintiffs owed him money although he testified that he thought he was owed $20, 000 rather than the $66, 000 set forth in his lien. However, he essentially acknowledged he had really filed the lien because he was angry, and the court does not credit his testimony that he thought plaintiffs owed him any money.

         7. Most of the contract documents in this case, including the only two documents signed by Phu Le, are barely contracts at all but are really summary punch lists, records of payments and amounts due, and signatures by Averill acknowledging payments.

         8. Averill violated the Home Construction Contract statute in numerous ways, including but not limited to the following:

(a)the original contract document dated July 21, 2014, such as it was, specified a total contract price of $147, 000 (PL Ex. 31) but did not include estimated start and completion dates, did not include the required warranty, did not include the required dispute resolution clause, did not include the required language with respect to change orders, and did not include the required consumer protection information. See 10 M.R.S. §§ 1487(3), (7), (8), (9), (12), (13).
(b) The sloppiness of the contract documents in this case is demonstrated by the fact that PI. Ex. 31 bears a typewritten contract price of $147, 000 crossed out with $140, 000 handwritten in. However, subsequent contractual documents submitted by Averill appear to incorporate the $147, 000 figure, although in some cases that figure has mysteriously been changed to $147, 500. See PL Ex. 11-12.
(c) Averill obtained Phu Le's signature on one additional contractual document (PL Ex. 9, dated December 10, 2014) which essentially constituted a change order. Among other things, the changes increased the total square footage of the addition, added 1½ bathrooms beyond the two original bathrooms in PL Ex. 31, and included radiant heat in the concrete floor for a new contract price of $168, 000.
(d) Averill also presented Phu Le and Tuanh Nguyen with at least four additional documents that can be construed as either purported change orders or additional contracts (PL Ex. 10-13, dated January 5, 2015, March 4, 2015, September 10, 2015, and October 20, 2015). In violation of 10 M.R.S. ...

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