Opinion
C.A. No. 04A-07-001-FSS.
Submitted: June 17, 2005.
Decided: September 30, 2005.
Upon Appeal From Court of Common Pleas — AFFIRMED.
James Landon, Esquire, 3200 Concord Pike, P.O. Box 7329, Wilmington, Delaware, 19803. Attorney for Appellants.
Steven F. Mones, Esquire, Law Office of Allan Wendelburg, Christiana Executive Campus, 131 Continental Drive, Suite 407, Wilmington, Delaware, 19713. Attorney for Appellee.
MEMORANDUM OPINION AND ORDER
This is an appeal from a bench trial in a straightforward contract dispute between a property owner and a contractor. After Appellee installed windows for Appellants, Appellants refused to pay the full, contract price. Appellants claimed a set-off to cover what Appellee allegedly paid to repair damage caused by Appellee. The trial court ruled for Appellee.
Appellants now argue that the trial court misapplied the contract's drywall/plaster damage exclusion. Although it appears that the trial court slightly overstated the exclusion in Appellee's favor, the slip was trivial. The verdict reflects Appellants' failure to prove its claim.
I.
On June 20, 2002, Appellee, MidSouth Building Supply of Maryland, Inc., filed suit against Appellants, Buckingham/Galman Associates, L.P. and Galman Group, Ltd., to recover $43,498.32, the balance due under a contract for window installation. Appellants counterclaimed, alleging poor workmanship and failure to complete the work on time. Appellants sought a set-off totaling $32,381.00 through their counterclaim.
On January 23, 2004, the trial court granted summary judgment to Appellee. Appellants' counterclaim went to trial on June 3, 2004, and the trial court again found for Appellee, on June 10, 2004. Appellants, timely, filed this appeal from the verdict on their failed counterclaim.
II.
An appeal from the Court of Common Pleas is on the record, without trial de novo. The standard and scope of review is to "correct errors of law and to review the factual findings of the court below to determine if they are sufficiently supported by the record and are the product of an orderly and logical deductive process."
State Farm Mut. Auto. Ins. Co. v. Dann, 794 A.2d 42, 45 (Del.Super. 2002).
III.
On September 22, 2000, Appellants contracted with Appellee to remove and replace the windows in 278 townhomes at Buckingham Place Townhouses. The contract included a drywall/plaster exclusion:
During the course of work there may be cracks which develop in the drywall/plaster around the window openings. MidSouth will caulk these cracks as they occur. MidSouth will not be responsible for cracks in the adjacent walls or for touch up painting of cracks.
Appellants' Opening Brief, at Exhibit B.
Between October 2000 and December 2000, Appellee sent four invoices totaling $263,498.32. Appellee completed work in January 2001. Appellants paid $220,000, leaving an unpaid balance of $43,498.32. On June 20, 2002, Appellee filed suit to collect.
Transcript at 5, 48, 132.
Id. at 5, 25, 129.
Id. at 26.
Appellants' employees testified that Appellee's work was poor and they constantly complained aloud to Appellee's foreman. Gerald Slipakoff, Appellants' vice-president, testified that Appellee's workmen ripped out the windows, causing damage to the area around the windows, both inside and outside. Regina Plunto, Appellants' property manager, testified that the new windows were not installed properly. Meanwhile, Gus Courpas, then-head of Appellee's installation department, testified that drywall damage was expected in a job like this, which is why Appellee's contracts typically had drywall/plaster exclusions.
Id. at 13-15, 57-58.
Id. at 12-14.
Id. at 57-58.
Id. at 141-142, 147-148.
In December 2000, when Appellee was almost finished with the job, the parties did a walk-through and created a punch-list. Appellee's workmen reported that they had completed the punch-list. After that, Appellants did not ask Appellee to fix any other problems and Appellee paid invoices up to April 2001.
Id. at 15-16.
Id. at 133.
When it finally completed its work, Daniel Flynn, Appellee's vice-president, repeatedly called Slipakoff to demand payment, but Slipakoff did not return his calls. Flynn finally reached Slipakoff in May 2001. During their conversation, Slipakoff neither mentioned problems with workmanship nor asked Appellee to make repairs. Instead, Slipakoff merely said "there [is] no more money left in the job."
Id. at 122, 130-131.
Id. at 122, 131-132.
Appellants hired two other companies, Paint Masters and Santilli Remodeling, to do work on the property. Paint Masters was on the job at the same time as Appellee, while Santilli Remodeling was hired after Appellee left the property. According to the trial court, it was unclear whether they were hired to fix problems left by Appellee. The trial court observed that Paint Masters was allegedly doing clean-up work before the phone conversation between Slipakoff and Flynn, yet Slipakoff did not complain to Flynn about Appellee's work. It was not until Appellee filed suit that it learned about Appellants' alleged dissatisfaction. Thus, the trial court rejected Appellants' claim that Paint Masters and Santilli were employed to fix damage caused by Appellee.
Id. at 59-60.
Id. at 59-60.
Midsouth Building Supply of Maryland, Inc. v. Buckingham/Galman Associates L.P., and Galman Group, Ltd., Del. CCP, C.A. No. 2002-06-401, at 4, James, J. (June 10, 2004).
Id. at 4.
Id. at 4.
IV.
Appellants contend that the trial court's decision was not supported by the evidence. Appellants focus on the trial judge's overstating the drywall/plaster damage exclusion. The trial court held, "An exclusion to the contract stated [Appellee] would not be responsible for any drywall damage since there were existing problems with the drywall." Appellants point-out that the contract actually provided that Appellee would caulk any cracks that developed in the drywall/plaster around the window openings, but Appellee would not be responsible for cracks in the adjacent walls or for touch-up painting. Appellants conclude that "the trial court's decision is based primarily on an exclusion that Appellee is not responsible for any drywall damage. An exclusion that is contrary to and unsupported by the evidence." In short, Appellants argue that the trial judge's misstatement constitutes grounds for reversal.
Midsouth, Del. CCP, C.A. No. 2002-06-401, at 2, James, J. (June 10, 2004).
Appellants' Opening Brief, at Exhibit B.
Appellants' Opening Brief, at 4.
Even if the trial judge slightly overstated the drywall/plaster exclusion by not mentioning Appellee's duty to caulk, it hardly matters. The trial court's decision turns on the fact that Appellee installed all the windows, it addressed the punch-list, and there were no complaints after that. And when pressed for payment, Appellants' representative told Appellee's representative there was no money left. Only after Appellee filed suit did Appellants announce they were displeased with the work. In light of these factual findings, it was reasonable for the trial court, in effect, to infer that Appellants' counterclaim was pretext and to find that Appellants failed to meet their burden of proof.
In reaching its conclusion here, the court is mindful of the standard of review. The court is not re-weighing the evidence. It simply is considering whether the trial court's conclusions are supported by the record and logical, which they are.
V.
For the foregoing reasons, the June 10, 2004 verdict in the trial court was based on substantial evidence and it is AFFIRMED.